Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that: (i) the Borrower may make Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared; (ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof): (A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years; (B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or (C) with the net proceeds of any key-man life insurance policies; (iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B); (iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower; (v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock; (vi) [reserved]; (vii) [reserved]; (viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount; (ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q)); (x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination; (xi) [reserved]; (xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and (xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower. (b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except: (i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01; (ii) as part of an applicable high yield discount obligation catch-up payment; (iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof); (iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv); (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01; (vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and (A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 5 contracts
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Administrative Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Administrative Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to any director, officer, employee, member of dividends management, manager and/or consultant of any Parent Company) and franchise Taxes, and similar fees and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Administrative Borrower and/or its subsidiaries);
(B) to discharge the consolidated, combined, unitary or similar distributions on account Tax liabilities of such Parent Company and its Capital Stock declared by subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Administrative Borrower in and/or any Fiscal Quartersubsidiary of the Administrative Borrower; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of any such dividends or distributions declared payment in respect of any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall taxable year does not exceed the greater amount of Taxes that the Administrative Borrower and/or its applicable subsidiary would have paid as standalone companies or as a standalone group;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent such expenses are attributable to any Parent Company and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Administrative Borrower and/or its subsidiaries);
(D) to pay any insurance premium that is payable by, or attributable to, any Parent Company and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Administrative Borrower and/or its subsidiaries);
(E) to pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status any debt and/or equity offering, investment and/or acquisition (provided that the Borrower may make such distributions in the form of cash whether or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Statusnot consummated) and (y) 100.0% Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of estimated Core Earnings such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Administrative Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Administrative Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Administrative Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Administrative Borrower and/or its subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the Administrative Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company, the Administrative Borrower or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Administrative Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Administrative Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)subsidiary) in an aggregate amount not to exceed, exceed $50,000,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall may be carried forward to the next two succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Qualified Capital Stock of the Administrative Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Administrative Borrower or any Restricted Subsidiary in each case, (1) other than any such proceeds Net Proceeds received from the sale of Capital Stock to, or contribution that forms part contributions from, the Administrative Borrower or any of its Restricted Subsidiaries, (2) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Cure Amount, Contribution Indebtedness Amount and/or any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policiespolicy;
(iii) the Administrative Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the such Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the such Borrower elects to apply to this clause (iii)(B);
(iv) the Administrative Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officer, director, employee, member of management, manager and/or consultant of the Administrative Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Administrative Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Administrative Borrower may make Restricted Payments the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of the Transactions, (ii) on and after the Closing Date, to satisfy any payment obligations owing under the Merger Agreement (including payment of working capital and/or purchase price adjustments) and to pay Transaction Costs, in each case, with respect to the Transactions and (iii) to direct or indirect holders of Capital Stock of the Administrative Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of any working capital and purchase price adjustments, in each case, with respect to the Transactions;
(vii) [reserved]so long as no Event of Default then exists, the Administrative Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments in an amount not to exceed the greater of (A) 6.00% per annum of the net Cash proceeds received by or contributed to the Administrative Borrower from any public offering and (B) 5.00% per annum of market capitalization;
(viii) the Administrative Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Administrative Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Administrative Borrower and/or any Restricted SubsidiarySubsidiary and other than in respect of any Cure Amount) of, Qualified Capital Stock of the Administrative Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Administrative Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Administrative Borrower or a Restricted SubsidiarySubsidiary and other than in respect of any Cure Amount) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Contribution Indebtedness Amount, the Available Amount or Amount, the Available Excluded Contribution AmountAmount or to make any other Restricted Payment or Restricted Debt Payment hereunder;
(ix) to the extent constituting a Restricted Payment, the Administrative Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) so long as no Event of Default then exists or would result therefrom, the Administrative Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $350,000,000 250,000,000 and 2.533% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) the amount of Investments made by the Administrative Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(ii) minus (C) the amount of Restricted Debt Payments made by any Loan Party in reliance on Section 6.04(b)(iv);
(xi) the Administrative Borrower may make additional Restricted Payments so long as (A) no Event of Default then exists or would result therefrom and (B) the Secured Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved]would not exceed 3.00:1.00;
(xii) the Borrower may make Restricted Payments with the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Administrative Borrower or a any Restricted Subsidiary by, any Unrestricted Subsidiaries Subsidiary (other than any Unrestricted Subsidiaries, Subsidiary the primary principal assets of which are cash and/or consist primarily of Cash and Cash Equivalents contributed received from an Investment by the Administrative Borrower and its and/or any Restricted SubsidiariesSubsidiary); and
(xiii) to the Borrower may declare and make dividend payments extent constituting a Restricted Payment, any distribution or other Restricted Payments payable solely in the Capital Stock payment of the Borrowerany Receivables Fee.
(b) The Administrative Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment in Cash on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the prepayment, purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (ypermitted by Section 6.01(p) any other and/or refinancing Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.016.01(x);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default under Section 7.01(a), (f) or (g) exists or would result therefrom, additional Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, greater of $250,000,000 and 33% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) the amount of Investments made by the Administrative Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(ii) minus (C) the amount of Restricted Payments made by the Administrative Borrower in reliance on Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Administrative Borrower and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, Administrative Borrower or any Restricted Subsidiary (in each case, other than any such issuance to, from the Administrative Borrower or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as other than in respect of any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount), (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Administrative Borrower and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01; provided that any amount applied to make a Restricted Debt Payment pursuant to this clause (v) shall not be applied or used to increase the Contribution Indebtedness Amount, the Available Amount, the Available Excluded Contribution Amount or to make any other Restricted Payment or Restricted Debt Payment hereunder;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Administrative Borrower elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Administrative Borrower elects to apply to this clause (vi)(B);
(vii) additional Restricted Debt Payments so long as (A) no Event of Default then exists or would result therefrom and (B) the Secured Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 3.00:1.00; and
(Aviii) mandatory prepayments of Restricted Debt Payments (and related payments of Junior Debt interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A6.04(b)(viii) shall not increase the amount available under clause (a)(ixa)(viii) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition).
Appears in 3 contracts
Samples: Credit Agreement (Syneos Health, Inc.), Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of (a) dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) an amount not greater than the amount necessary to enable maintain the Borrower’s status as a REIT and to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to maintain its REIT Status Sections 857(b) and 4981 of the Code) (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s status as a REIT Statusand to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to Sections 857(b) and 4981 of the Code) and (y) 100.0except during a Scheduled Wind-Down Period, 100% of estimated Core Operating Earnings of the Borrower and its Subsidiaries, (determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, basis) for the full fiscal quarter in which the applicable Restricted Payment dividend is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 15,000,000 and 0.180.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) Except during a Scheduled Wind-Down Period or otherwise permitted in this Section 6.04(a), the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or and (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections Section 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 140,000,000 and 2.53.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.02(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination, in each case so long as no Event of Default under Section 7.01(a), (f) or (q) exists;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of dividends management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in and/or its Subsidiaries), and/or its Subsidiaries;
(B) for any Fiscal Quartertaxable period for which the Borrower is a member of a consolidated, combined, unitary or similar tax group for U.S. federal and/or applicable state or local tax purposes of which such Parent Company is the common parent, to discharge the consolidated, combined, unitary or similar Tax liabilities of such Parent Company and its Subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Borrower and/or any Subsidiary; provided that the amount of such dividends or similar distributions may be paid by payments in respect of any taxable year do not exceed the amount of such Taxes that the Borrower within 60 calendar days following the date that and/or its applicable Subsidiaries would have paid had such dividend Taxes been paid as stand-alone companies or other distribution is declared by the Borroweras a stand-alone group; provided, further, thatthat any such payment in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions are made by such Unrestricted Subsidiary to the Borrower or any of its Restricted Subsidiaries for such purpose;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, solely for purposes the avoidance of this clause (idoubt, the portion of any such expenses, if any, attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower and/or its Subsidiaries), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, determined for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower and/or its Subsidiaries), the Borrower and its Subsidiaries;
(E) to pay (x) fees and expenses related to debt or equity offerings, investments or acquisitions (including the IPO) (in good faith each case whether or not consummated) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role, and (y) Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its Subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)Subsidiary) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 35,250,000 and 0.1815% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members in connection with such exercise and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock;
(vi) [reserved]the Borrower may make Restricted Payments, the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of the Transactions and (ii) on and after the Closing Date, to pay Transaction Costs;
(vii) [reserved]so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists at the time of declaration of such Restricted Payment, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed the sum of (i) 7.00% per annum of the net Cash proceeds received by or contributed to the Borrower from the IPO and (ii) 7.00% of the Market Capitalization of Holdings or its applicable Parent Company whose Capital Stock is publicly traded;
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (qj));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 94,000,000 and 2.540% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period plus at the election of the Borrower, the amount of Restricted Debt Payments then permitted to be made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv) (such increase shall result in a reduction in availability under Section 6.04(b)(iv)) plus at the election of the Borrower, the amount of Investments then permitted to be made by the Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(i) (such increase shall result in a reduction in availability under Section 6.06(q)(i));
(xi) the Borrower may make Restricted Payments so long as (i) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists at the time of the declaration of such Restricted Payment and (ii) the Total Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved]would not exceed 4.50:1:00;
(xii) the Borrower may make any Restricted Payments Payment with the Capital Stock of, or Indebtedness owed cash tax savings attributable to the Borrower or a Transactions in an aggregate amount not to exceed $50,000,000; provided that no Event of Default exists at the time of the declaration of such Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)Payment; and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the BorrowerBorrower or of any Parent Company.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment prepayment in Cash in respect of principal of any Junior Indebtedness (the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portiongreater of $82,250,000 and 35% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, if anyplus at the election of the Borrower, the amount of Section 6.04(a)(x) at such time of determination that Investments then permitted to be made by the Borrower elects to reallocate to this or any Restricted Subsidiary in reliance on Section 6.04(b)(iv6.06(q)(i) (such increase shall result in a reduction in availability under Section 6.06(q)(i));
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B);
(vii) Restricted Debt Payments in an unlimited amount; provided that (A) no Event of Default under Section 7.01(a), (f) or (g) exists at the time of delivery of irrevocable notice of such Restricted Debt Payment and (B) the Total Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 4.50:1:00;
(viii) Restricted Debt Payments in an aggregate amount not to exceed the Available RP Capacity Amount; and
(Aix) mandatory prepayments of Restricted Debt Payments (and related payments of Junior Debt interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A6.04(b)(ix) shall not increase the amount available under clause (a)(ixa)(viii) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition).
Appears in 3 contracts
Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Top Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Top Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of dividends management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), and/or its subsidiaries;
(B) to discharge the consolidated, combined, unitary or similar distributions on account Tax liabilities of such Parent Company and its Capital Stock declared by subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Top Borrower in and/or any Fiscal Quartersubsidiary; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared payments in respect of any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall taxable year do not exceed the greater amount of such Taxes that the Top Borrower and/or its applicable subsidiary would have paid had such Taxes been paid as stand alone companies or as a stand alone group;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), the Top Borrower and its subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), the Top Borrower and its subsidiaries;
(E) to pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, investments or acquisitions (provided that the Borrower may make such distributions in the form of cash whether or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Statusnot consummated) and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering, Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Top Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Top Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Top Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Top Borrower and/or its subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the Top Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Top Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Top Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)subsidiary) in an amount not to exceed, exceed $18,500,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall may be carried forward to the next two succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the Top Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Top Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)Subsidiary); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Top Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Top Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Top Borrower elects to apply to this clause (iii)(B);
(iv) the Top Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Top Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Top Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Top Borrower may make Restricted Payments, the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of the Transactions and (ii) on and after the Closing Date, to satisfy any payment obligations owing under the Acquisition Agreement;
(vii) [reserved]so long as no Event of Default then exists, following the consummation of the first Qualifying IPO, the Top Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount of 6.00% per annum of the net Cash proceeds received by or contributed to the Top Borrower from any Qualifying IPO;
(viii) the Top Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Top Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Top Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Top Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Top Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Top Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Top Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Top Borrower may make additional Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 49,000,000 and 2.529% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period Period, minus (A) the amount of Restricted Debt Payments made by the Top Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv)(B), minus (B) the outstanding amount of Investments made by the Top Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(ii); and
(xi) the Top Borrower may make additional Restricted Payments so long as the Total Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrowerwould not exceed 5.05:1.00.
(b) The Top Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment in Cash on or in respect of principal of or interest on (x) any Junior Lien Indebtedness or (y) any Junior Indebtedness (the Indebtedness described in clauses (x) and (y), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other permitted by Section 6.01 and/or refinancing Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.016.01(x);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default exists or would result therefrom, additional Restricted Debt Payments in an aggregate amount not to exceed exceed:
(A) the portiongreater of $49,000,000 and 29% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, if anyminus the amount of Investments made in reliance on Section 6.06(q)(iii); plus
(B) the greater of: $49,000,000 and 29% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, minus (1) the amount of Restricted Payments made by the Top Borrower in reliance on Section 6.04(a)(x), minus (2) at such time the outstanding amount of determination that Investments made by the Top Borrower elects to reallocate to this or any Restricted Subsidiary in reliance on Section 6.04(b)(iv6.06(q)(ii);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Top Borrower and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, Top Borrower or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution AmountSubsidiary, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Top Borrower and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Top Borrower elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Top Borrower elects to apply to this clause (vi)(B); and
(Avii) additional Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood Payments; provided that any Declined Proceeds applied to make Restricted Debt Payments in reliance the Total Leverage Ratio, calculated on this Section 6.04(b)(vii)(A) shall a Pro Forma Basis, would not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisitionexceed 6.25:1.00.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower and the Restricted Subsidiaries shall not pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Restricted Payments to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers or consultants of any Parent Company) and franchise fees and similar Taxes and similar fees and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company or its Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower may make and its Subsidiaries);
(B) for any taxable period for which the Borrower is a member of a consolidated, combined or similar income tax group for U.S. federal or applicable state or local income tax purposes of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay the portion of any U.S. federal, state or local income Taxes of such Tax Group for such taxable period that are attributable to the income of the Borrower and/or its Subsidiaries; provided that (1) the amount of such Restricted Payments consisting for any taxable period shall not exceed the amount of dividends such Taxes that the Borrower and/or such Subsidiaries, as applicable, would have paid had the Borrower and/or such Subsidiaries, as applicable, been a stand-alone taxpayer (or other similar distributions on account of its Capital Stock declared a stand-alone group), less any refunds received by the Borrower in respect of the Borrower Tax Refund Receivable, and (2) Restricted Payments in respect of any Fiscal Quarter; provided Taxes attributable to the income of an Unrestricted Subsidiary shall be permitted only to the extent that such dividends or similar distributions may be paid by Unrestricted Subsidiary has made cash payments for such purpose to the Borrower within 60 calendar days following or any Restricted Subsidiary;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the date that such dividend extent attributable to any Parent Company or other distribution is declared by its Subsidiaries (but excluding, for the Borrower; provided, further, that, solely for purposes avoidance of this clause (i)doubt, the amount portion of any such dividends expenses, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as Subsidiary of any Parent Company other than the Borrower and its Subsidiaries);
(D) for the payment of insurance premiums to which Restricted Payments are made pursuant the extent attributable to this clause any Parent Company or its Subsidiaries (ibut excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower and its Subsidiaries);
(E) shall not exceed the greater of to pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, Investments or acquisitions (provided that the Borrower may make such distributions in the form of cash whether or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Statusnot consummated) and (y) 100.0% Public Company Costs;
(F) to finance any Permitted Investment or any other Investment otherwise permitted under this Section 6.04(a) (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of estimated Core Earnings such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of the Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of the Restricted Subsidiaries, in order to consummate such Investment as a Permitted Investment or in compliance with the applicable requirements of the applicable provisions of this Section 6.04(a) as if undertaken as a direct Investment by the Borrower or a Restricted Subsidiary); and
(G) to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the foregoing) to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and its Subsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay Restricted Payments (or making Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company, the Borrower or any Subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Subsidiary:
(A) in accordance with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect terms of promissory notes issued pursuant to evidence Section 6.01(o), so long as the aggregate amount of all Cash payments made in respect of such promissory notes, together with the aggregate amount of Restricted Payments made pursuant to sub-clause (D) of this clause (ii), in any obligation Fiscal Year does not exceed the greater of $55,000,000 (with unused amounts in any Fiscal Year being carried over to repurchase, redeem, retire any subsequent Fiscal Year) and 13.0% of Consolidated Adjusted EBITDA for such Fiscal Year; provided that such amount in any Fiscal Year shall be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or otherwise acquire the Restricted Subsidiaries (or retire for value the Capital Stock of by any Parent Company and contributed to the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant Restricted Subsidiary) after the Closing Date and not previously utilized under this sub-clause (or any Affiliate or Immediate Family Member thereofA) of the Borrower this clause (ii) or any Subsidiary sub-clauses (C) or (D) of the Manager or any Affiliate thereofthis clause (ii)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available AmountSubsidiary)); or;
(C) with the net proceeds of any key-man life insurance policies; or
(D) with Cash and Cash Equivalents so long as the aggregate amount of Restricted Payments made pursuant to this sub-clause (D) of this clause (ii), together with the aggregate amount of all Cash payments made pursuant to sub-clause (A) of this clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), in any Fiscal Year does not exceed the greater of $55,000,000 (with unused amounts in any Fiscal Year being carried over to any subsequent Fiscal Year) and 13.0% of Consolidated Adjusted EBITDA for such Fiscal Year; provided that such amount in any Fiscal Year shall be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries (or by any Parent Company and contributed to the Borrower or any Restricted Subsidiary) after the Closing Date and not previously utilized under this sub-clause (D) of this clause (ii) or sub-clauses (A) or (C) of this clause (ii);
(iii) the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects and the Restricted Subsidiaries elect to apply to this clause (iii)(Aiii); provided that (x) and/or immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing and (By) in the portion, if any, case of any utilization of the unutilized Available Excluded Contribution Amount Builder Basket, the Total Leverage Ratio, calculated on such date that a Pro Forma Basis for the Borrower elects to apply to this clause (iii)(B)most recently ended Test Period, would not exceed 4.50:1.00;
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable forfor Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or otherwise based onformer officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members (to the extent attributable to any transaction involving Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company or attributable to the operations of the Borrower and its Subsidiaries) or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower may Restricted Payments to repurchase (or making Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reservedReserved];
(vii) [reserved]so long as, immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing, making Restricted Payments (or making Restricted Payments to any Parent Company to enable it to make corresponding payments) with respect to Capital Stock in an amount not to exceed the greater of (A) 6.0% per annum of the Net Proceeds received by or contributed to the Borrower from any Public Offering and (B) 5.0% per annum of market capitalization;
(viii) the Borrower may make Restricted Payments to (iA) redeem, repurchase, retire or otherwise acquire any (x) Capital Stock (“Treasury Capital Stock”) of the Borrower and/or or any Restricted Subsidiary or (y) Capital Stock of any Parent Company, in the case of each of subclauses (x) and (y), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (iiB) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted PaymentPayments, the Borrower may consummate any transaction transactions permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) to the Borrower may make extent that immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing, additional Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 41,500,000 and 2.510.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period Period, minus the amount of Restricted Debt Payments made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv);
(xi) to the extent that immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing, additional Restricted Payments so long as the aggregate amount of Restricted Payments made pursuant to this clause (xi) in any Fiscal Year does not exceed the greater of $25,000,000 (with unused amounts in any Fiscal Year being carried over to any subsequent Fiscal Year) and 6.0% of Consolidated Adjusted EBITDA for such Fiscal Year;
(xii) Restricted Subsidiaries may pay dividends and other distributions and Restricted Payments (other than Restricted Payments of the type described in clause (c) of the definition thereof) to their equity holders generally, so long as the Borrower or any Restricted Subsidiary that owns the equity interest in the Restricted Subsidiary paying such dividends and other distributions and Restricted Payments (other than Restricted Payments of the type described in clause (c) of the definition thereof) receives at least its pro rata share thereof based on the respective ownership of such Restricted Subsidiary;
(xiii) to the extent constituting a Restricted Payment, the Transactions; and
(xiv) additional Restricted Payments so long as (A) immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing and (B) the First Lien Leverage Ratio, calculated on a Pro Forma BasisBasis for the most recently ended Test Period, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrowerwould not exceed 2.15:1.00.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, Cash on account of the purchase, redemption, retirement, acquisition, cancellation or termination of principal of or interest on any Junior Restricted Debt (including any by making any sinking fund or similar deposit), in each case, more than one year 30 days prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as, immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing, additional Restricted Debt Payments in an aggregate amount not to exceed the portiongreater of $41,500,000 and 10.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period, if any, minus the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(Av) Restricted Debt Payments in exchange for, or made with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or or any Restricted Subsidiary or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, Borrower or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01Subsidiary;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(Avi); provided that (x) immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing and (y) in the case of any utilization of the Builder Basket, the Total Leverage Ratio, calculated on a Pro Forma Basis for the most recently ended Test Period, would not exceed 4.50:1.00; and
(vii) additional Restricted Debt Payments; provided that (A) immediately prior to and immediately after giving effect thereto, no Event of Default has occurred and is continuing and (B) the portionFirst Lien Leverage Ratio, if anycalculated on a Pro Forma Basis for the most recently ended Test Period, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall would not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisitionexceed 2.15:1.00.
Appears in 2 contracts
Samples: Credit Agreement (Victory Capital Holdings, Inc.), Credit Agreement (Victory Capital Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company and/or its Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower and/or its Subsidiaries);
(B) if Borrower is included in a group filing a consolidated, combined, or similar income tax return with Holdings, distributions to Holdings to pay (or to make distributions to any Fiscal Quarterdirect or indirect parent of Holdings to pay) the relevant consolidated, combined, unitary or similar income Tax liabilities, when and as due, attributable to taxable income of the Borrower and its Restricted Subsidiaries; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (iSection 6.04(a)(i)(B) shall not exceed the greater amount of income Tax that the Borrower would pay if it were the parent entity of a group filing such consolidated, combined or similar tax return with the applicable Restricted Subsidiaries;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent such expenses are attributable to any Parent Company and/or its Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower and/or its Subsidiaries);
(D) to pay any insurance premium that is payable by, or attributable to, any Parent Company and/or its Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent Company other than the Borrower and/or its Subsidiaries);
(E) to pay fees after the consummation of an initial public offering or the issuance of public debt Securities, Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make closing of such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) Investment and (y) 100.0% the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of estimated Core Earnings its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
(G) to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the foregoing) to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and and/or its Subsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)Subsidiary) in an aggregate amount not to exceed, exceed $5,000,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall may be carried forward to the next two succeeding Fiscal YearsYears but in any event not to exceed an aggregate of $10,000,000 in any Fiscal Year;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Qualified Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary in each case, (1) other than any such proceeds Net Proceeds received from the sale of Capital Stock to, or contribution that forms part contributions from, the Borrower or any of its Restricted Subsidiaries, (2) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Cure Amount, Contribution Indebtedness Amount and/or any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policiespolicy;
(iii) the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officer, director, employee, member of management, manager and/or consultant of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Borrower may make Restricted Payments the proceeds of which are applied to pay Transaction Costs with respect to the Transactions;
(vii) [reserved]so long as no Event of Default then exists, the Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments in an amount not to exceed the sum of (i) 6.00% per annum of the net Cash proceeds received by or contributed to the Borrower from any public offering and (ii) 6.00% per annum of the Market Capitalization of the Borrower;
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of sub-clauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted SubsidiarySubsidiary and other than in respect of any Cure Amount) of, Qualified Capital Stock of the Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted SubsidiarySubsidiary and other than in respect of any Cure Amount) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Contribution Indebtedness Amount, the Available Amount or Amount, the Available Excluded Contribution AmountAmount or to make any other Restricted Payment or Restricted Debt Payment hereunder;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed the greater of (i) $350,000,000 100,000,000 and 2.5(ii) 50% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period plus at the election of the Borrower the amount of Restricted Debt Payments then permitted to be made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv) (such increase shall result in a reduction in availability under Section 6.04(b)(iv)) (the “General Restricted Payments Basket”); and
(xi) the Borrower may make additional Restricted Payments so long as (A) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) then exists or would result therefrom and (B) the Total Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved]would not exceed 3.00:1.00;
(xii) the Borrower may make Restricted Payments of Securitization Fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Receivables Facility; provided that any Indebtedness incurred under Section 6.01(ff) in lieu of any Restricted Payment made pursuant to Section 6.04(a) shall reduce availability under the Capital Stock of, or Indebtedness owed to the Borrower or a applicable Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted SubsidiariesPayment basket under Section 6.04(a); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it they permit any Restricted Subsidiary to, make any Prepayment payment in Cash on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the prepayment, purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or permitted by Section 6.01(p) and/or refinancing Indebtedness permitted by clause (yii) any other Indebtedness or Disqualified Capital Stock permitted pursuant to of Section 6.016.01(gg);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) additional Restricted Debt Payments in an aggregate amount not to exceed the portiongreater of (i) $80,000,000 and (ii) 40% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, if any, plus at the election of the Borrower the amount of Restricted Payments then permitted to be made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(a)(x) at (such time of determination that the Borrower elects to reallocate to this increase shall result in a reduction in availability under Section 6.04(b)(iv6.04(a)(x));
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, Borrower or any Restricted Subsidiary (in each case, other than any such issuance to, from the Borrower or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as other than in respect of any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount), (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01; provided that any amount applied to make a Restricted Debt Payment pursuant to this clause (v) shall not be applied or used to increase the Contribution Indebtedness Amount, the Available Amount, the Available Excluded Contribution Amount or to make any other Restricted Payment or Restricted Debt Payment hereunder;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and;
(vii) additional Restricted Debt Payments so long as (A) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) then exists or would result therefrom and (B) the Total Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 3.00:1.00;
(viii) mandatory prepayments of Restricted Debt Payments (and related payments of Junior Debt interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A6.04(b)(viii) shall not increase the amount available under clause (a)(ixa)(viii) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower Parent shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared[reserved];
(ii) the Borrower Parent may pay to for the repurchase, redeemredemption, retire retirement or otherwise acquire other acquisition or retire retirement for value the of Capital Stock of the Borrower or any Subsidiary subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Permitted Payee:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted PaymentPayments, amounts paid in respect of promissory notes issued pursuant to evidence any obligation to repurchaseSection 6.01(o)), redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an aggregate amount not to exceed, in any Fiscal Year, exceed (1) the greater of $25,000,000 120,000,000 and 0.183.4% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisin any Fiscal Year, which, if not used in such any Fiscal Year, shall may be carried forward to the immediately succeeding Fiscal Years;Year (and deemed first applied in such subsequent Fiscal Year) minus (2) any utilization of the Shared RP Amount in reliance on unused capacity under the immediately preceding clause (1); plus
(B) with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower Parent (to the extent such proceeds are contributed to the Parent or any Restricted Subsidiary in respect of Qualified Capital Stock to issued by the Borrower Parent or any such Restricted Subsidiary Subsidiary) (other than any such proceeds or contribution that forms part of any amounts constituting an Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); orplus
(C) with the net proceeds of any key-man life insurance policies; plus
(D) with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital Stock of the Parent pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the Borrower Parent may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower Parent elects to apply to this clause (iii)(A) and/or plus (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower Parent elects to apply to this clause (iii)(B) (plus, without duplication of amounts referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Section 6.04(b)(vi) or Section 6.06(r));
(iv) the Borrower Parent may (A) make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of the BorrowerParent, or in connection with dividends, share splits, reverse share splits (or any combination thereof) and mergers, consolidations, amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder, (B) honor any conversion request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion and make payments on convertible Indebtedness in accordance with its terms and (C) make Restricted Payments consisting of (x) payments made or expected to be made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (y) repurchases of Capital Stock in consideration of the payments described in sub clause (x) above, including demand repurchases in connection with the exercise of stock options and the issuance of restricted stock units or similar stock based awards;
(v) the Borrower Parent may repurchase repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with) (or make provisions for withholdings in connection with), the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved]the Parent may make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) an amount equal to 6.00% per annum of the net Cash proceeds received by or contributed to the Parent from any public offering after the Closing Date minus (B) any utilization of the Shared RP Amount in reliance on unused capacity under immediately preceding clause (A);
(viii) the Borrower Parent may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower Parent and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower Parent and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower Parent to the extent any such proceeds are contributed to the capital of the Borrower Parent and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower Parent or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Parent may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Borrower Parent may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $350,000,000 750,000,000 and 2.521.5% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), minus (fB) or (g) exists, minus any amounts then reallocated at the election utilization of the Borrower Shared RP Amount in reliance on unused capacity under immediately preceding clause (and without duplication) to Section 6.01(uA), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) the Parent may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section 6.04(a);
(xii) [reserved];
(xiixiii) [reserved];
(xiv) [reserved];
(xv) [reserved];
(xvi) the Borrower Parent may make additional Restricted Payments with constituting any part of a Permitted Reorganization;
(xvii) the Parent may make a distribution, by dividend or otherwise, of the Capital Stock of, or Indebtedness debt owed to the Borrower any Loan Party or any Restricted Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than that owns one or more Unrestricted Subsidiaries, provided that such Restricted Subsidiary owns no assets other than Capital Stock of one or more Unrestricted Subsidiaries and immaterial assets incidental to the primary assets of which are cash and/or Cash Equivalents contributed ownership thereof); provided that any such Capital Stock or debt that represents an Investment by the Borrower Parent or any Restricted Subsidiary shall be deemed to continue to charge (as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xviii) the Parent may make payments and its distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)), pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07 or any other transaction permitted hereunder;
(xix) the Parent may make a Restricted SubsidiariesPayment in respect of payments made for the benefit of the Parent or any Restricted Subsidiary to the extent such payments could have been made by the Parent or any Restricted Subsidiary because such payments (A) would not otherwise be Restricted Payments and (B) would be permitted by Section 6.09;
(xx) the Parent may make a Restricted Payment in respect of any payments or deliveries in connection with (a) a Permitted Bond Hedge Transaction or (b) Permitted Warrant Transaction or Packaged Rights (i) by delivery of shares of the Parent’s Qualified Capital Stock or (ii) otherwise, to the extent of a payment or delivery received from a Permitted Bond Hedge Transaction (whether such payment or delivery on the Permitted Warrant Transaction is effected by netting, set-off or otherwise); and
(xiiixxi) the Borrower Parent may declare make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted Payee and make dividend payments or other Restricted Payments payable solely in the any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the Borrowerexercise of stock options or the issuance of restricted stock units or similar stock based awards.
(b) The Borrower Parent shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment voluntary prepayment in Cash on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior any Restricted Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) payments as part of of, or to enable another Person to make, an “applicable high yield discount obligation obligation” catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Restricted Debt that are prohibited by the subordination provisions thereof);
(iv) additional Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) Shared RP Amount at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv)time;
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower Parent and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, Parent or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution AmountSubsidiary, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower Parent and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower Parent elects to apply to this clause (vi)(A) and plus (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower Parent elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously referred to in this clause (B); and, in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof under Section 6.04(a)(iii) or 6.06(r));
(vii) [reserved];
(A) Restricted Debt Payments in exchange for, or with proceeds of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) issuance of, Disqualified Capital Stock of the definition Parent and/or any Restricted Subsidiary and/or any capital contribution in respect of “Available Amount” to Disqualified Capital Stock of the extent so applied) and Parent or any Restricted Subsidiary and/or (B) Restricted Debt Payments as a result of Junior the conversion of all or any portion of any Restricted Debt into Disqualified Capital Stock of the Parent and/or any Restricted Subsidiary;
(ix) [reserved]; and
(x) Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n); provided that any such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability to make such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which Investment pursuant to Section 6.06 at such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisitiontime.
Appears in 2 contracts
Samples: Credit Agreement (Bausch Health Companies Inc.), Restatement Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower Borrowers shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower Borrowers may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to (1) pay general administrative and operating costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to officers, employees, members of dividends management, managers, employees and/or consultants of any Parent Company (and/or any Immediate Family Member of any of the foregoing)) and franchise fees, franchise Taxes and similar fees, Taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other similar distributions on account of its Capital Stock declared by than Intermediate Holdings, CP Holdings LLC, Industrea, the Borrower Borrowers and/or their subsidiaries), Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and their subsidiaries; provided, that Restricted Payments made pursuant to this Section 6.4(a)(i)(A)(1) shall not exceed $5,000,000 in any Fiscal QuarterYear, (2) pay customary salary or fees payable to directors of any Parent Company (and/or any Immediate Family Member of the foregoing), which is reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership of Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and/or their subsidiaries, subject, in the case of salary or fees in respect of directors appointed by, and representatives of, the Permitted Holders, in an aggregate amount not to exceed $1,000,000 during any fiscal year, (3) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and/or its subsidiaries), Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and their subsidiaries; and (4) pay costs and expenses, including any public company costs, associated with the compliance by Holdings with the requirements and/or regulations applicable to public companies, including, without limitation, the “Xxxxxxxx-Xxxxx” legislation and related regulatory rules and regulations promulgated thereunder;
(B) to pay Taxes due and payable by such Parent Company to any taxing authority and that are attributable to the income or operation of Holdings, Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers or their Restricted Subsidiaries, including any consolidated, combined or similar income tax liabilities attributable to taxable income of Holdings, Intermediate Holdings, CP Holdings LLC, Industrea, Borrowers and their Restricted Subsidiaries; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) Tax payment shall not exceed the greater Taxes of the Borrowers and their Restricted Subsidiaries that would be payable if the Borrowers and their Restricted Subsidiaries were a separate consolidated, combined, unitary or similar group; provided, further that the amount permitted under this subclause (B) relating to Taxes that are attributable to the taxable income of Unrestricted Subsidiaries in any period shall be limited to the amount of dividends and other distributions actually made by such Unrestricted Subsidiaries to any Restricted Subsidiary for such purpose;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of Holdings, other than Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and/or their subsidiaries), Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and their Restricted Subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and/or their subsidiaries), Holdings, Intermediate Holdings, CP Holdings LLC, Industrea, the Borrowers and their Restricted Subsidiaries; and
(E) to finance any Investment permitted under Section 6.6 (provided that (x) any Restricted Payment under this clause (a)(i)(E) shall be made substantially concurrently with the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make closing of such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) Investment and (y) 100.0% the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to a Borrower or one or more of estimated Core Earnings its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into a Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.6 as if undertaken as a direct Investment by the relevant Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declaredSubsidiary;
(ii) the Borrower Borrowers may pay (or may make Restricted Payments to allow any Parent Company to) repurchase, redeem, retire redeem or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Borrowers or any Restricted Subsidiary (or of the Manager or any Affiliate thereof):Borrowers:
(A) with Cash cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Restricted Subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Borrowers or any Subsidiary (or of the Manager or Borrowers); provided, that at the time any Affiliate thereof)) in an amount not to exceed, in any Fiscal Yearsuch Restricted Payment is made and after giving pro forma effect thereto, the greater aggregate amount of $25,000,000 and 0.18% of Consolidated Total Assets Restricted Payments made as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if such date pursuant to this Section 6.4(a)(ii)(A) shall not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Yearsexceed $10,000,000;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the a Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the relevant Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution AmountSubsidiary), Cure Amount or outstanding Contribution Indebtedness Amount or but only to the extent such proceeds or contribution has increased the Available Amount and is have not otherwise been applied to incur an applicable transaction under the Available Amount))make Restricted Payments or Restricted Debt Payments hereunder; or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)[reserved];
(iv) the Borrower Borrowers may make Restricted Payments consisting of Cash (i) to any Parent Company to enable such Parent Company to make cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above;
(v) the Borrower Borrowers may make Restricted Payments to repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Borrowers may consummate any transaction permitted by Section 6.06 6.6 (other than Sections 6.06(j6.6(i) and (ts)), Section 6.07 6.7 (other than Section 6.07(g6.7(g)) and Section 6.09 6.8 (other than Sections 6.09(d), (j) and (qSection 6.8(d));
(xviii) the Borrower may make other Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as Payments; provided that (A) no Event of Default under Section 7.01(a), has occurred and is continuing or would result therefrom and (fB) or (g) exists, minus any amounts then reallocated at the election time any such Restricted Payment is made and after giving pro forma effect thereto, the aggregate amount of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed made as of such date pursuant to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)this Section 6.4(a)(viii) shall not exceed $10,000,000; and
(xiiiix) the Borrower may declare and make dividend payments or any other Restricted Payments payable solely in Payment subject to compliance with the Capital Stock of the BorrowerPayment Conditions.
(b) The Borrower Borrowers shall not, nor shall it the Borrowers permit any Restricted Subsidiary to, make any Prepayment payment in cash on or in respect of principal of or interest on any (x) Junior Lien Indebtedness, (y) Junior Indebtedness and (z) unsecured Indebtedness permitted hereunder (the Indebtedness described in clauses (x) through (z), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted to be incurred pursuant to Section 6.016.1(m);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower Holdings and/or any capital contribution in respect of Qualified Capital Stock of the BorrowerBorrowers, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except but only to the extent such amount is proceeds have not otherwise been applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment Payments or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution AmountPayments hereunder, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower Borrowers or any Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.016.1;
(iv) [intentionally omitted];
(v) [intentionally omitted];
(vi) other Restricted Debt Payments; provided that (A) no Event of Default has occurred and is continuing or would result therefrom, and (B) at the time any such Restricted Debt Payment is made and after giving pro forma effect thereto, the aggregate amount of Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, made as of the Available Amount on such date that the Borrower elects to apply pursuant to this clause (vi)(Avi) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B)shall not exceed $5,000,000; and
(Avii) any other Restricted Debt Payments of Junior Debt made subject to compliance with Declined Proceeds the Payment Conditions.
(it being understood that c) The Borrowers shall not, nor shall the Borrowers permit any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed Subsidiary to, except in connection with a Permitted Acquisition Refinancing Indebtedness permitted by Section 6.1, (i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Second Lien Secured Notes Obligations unless the Payment Conditions are satisfied or (ii) make any mandatory prepayment on account of Indebtedness under the Second Lien Secured Notes Obligations other permitted Investment, which such assumption than those contemplated by permitted under Section 6.01, and such Junior Debt was not issued the Second Lien Secured Notes Documents as in contemplation of such Permitted Acquisitioneffect on the Closing Date.
Appears in 2 contracts
Samples: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Top Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Top Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of dividends management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), and/or its subsidiaries;
(B) to discharge the consolidated, combined, unitary or similar distributions on account Tax liabilities of such Parent Company and its Capital Stock declared by subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Top Borrower in and/or any Fiscal Quartersubsidiary; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared payments in respect of any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall taxable year do not exceed the greater amount of such Taxes that the Top Borrower and/or its applicable subsidiary would have paid had such Taxes been paid as stand alone companies or as a stand alone group;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), the Top Borrower and its subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Top Borrower and/or its subsidiaries), the Top Borrower and its subsidiaries;
(E) to pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, investments or acquisitions (provided that the Borrower may make such distributions in the form of cash whether or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Statusnot consummated) and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering, Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Top Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Top Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Top Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Top Borrower and/or its subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the Top Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Top Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Top Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)subsidiary) in an amount not to exceed, exceed $15,000,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall may be carried forward to the next two succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the Top Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Top Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)Subsidiary); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Top Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Top Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Top Borrower elects to apply to this clause (iii)(B);
(iv) the Top Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Top Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Top Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Top Borrower may make Restricted Payments, the proceeds of which are applied (i) on the Closing Date, solely to effect the consummation of the Transactions and (ii) on and after the Closing Date, to satisfy any payment obligations owing under the Acquisition Agreement;
(vii) [reserved]so long as no Event of Default then exists, following the consummation of the first Qualifying IPO, the Top Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount of 6.00% per annum of the net Cash proceeds received by or contributed to the Top Borrower from any Qualifying IPO;
(viii) the Top Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Top Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Top Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Top Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Top Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Top Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Top Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Top Borrower may make additional Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 40,000,000 and 2.523% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period Period, minus (A) the amount of Restricted Debt Payments made by the Top Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv)(B), minus (B) the outstanding amount of Investments made by the Top Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(ii); and
(xi) the Top Borrower may make additional Restricted Payments so long as the Total Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrowerwould not exceed 4.80:1.00.
(b) The Top Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment in Cash on or in respect of principal of or interest on (x) any Indebtedness permitted under Section 6.01(x), (y) any Junior Lien Indebtedness or (z) any Junior Indebtedness (the Indebtedness described in clauses (x) through (z), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other permitted by Section 6.01 and/or refinancing Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.016.01(x);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default exists or would result therefrom, additional Restricted Debt Payments in an aggregate amount not to exceed exceed:
(A) the portiongreater of $40,000,000 and 23% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, if anyminus the amount of Investments made in reliance on Section 6.06(q)(iii); plus
(B) the greater of: $40,000,000 and 23% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, minus (1) the amount of Restricted Payments made by the Top Borrower in reliance on Section 6.04(a)(x), minus (2) at such time the outstanding amount of determination that Investments made by the Top Borrower elects to reallocate to this or any Restricted Subsidiary in reliance on Section 6.04(b)(iv6.06(q)(ii);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Top Borrower and/or any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, Top Borrower or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution AmountSubsidiary, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Top Borrower and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Top Borrower elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Top Borrower elects to apply to this clause (vi)(B);
(vii) additional Restricted Debt Payments; provided that the Total Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 6.00:1.00; and
(Aviii) Restricted Debt Payments mandatory prepayments of Junior Debt the Second Lien Facility (and related payments of interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A6.04(b)(viii) shall not increase the amount available under clause (a)(ixa)(viii) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower Borrowers shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower Borrowers may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to (1) pay general administrative and operating costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to officers, employees, members of dividends management, managers, employees and/or consultants of any Parent Company (and/or any Immediate Family Member of any of the foregoing)) and franchise fees, franchise Taxes and similar fees, Taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other similar distributions on account of its Capital Stock declared by than Intermediate Holdings, CP Holdings LLC, Buyer, the Borrower Borrowers and/or their subsidiaries), Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and their subsidiaries; provided, that Restricted Payments made pursuant to this Section 6.4(a)(i)(A)(1) shall not exceed $5,000,000 in any Fiscal QuarterYear, (2) pay customary salary or fees payable to directors of any Parent Company (and/or any Immediate Family Member of the foregoing), which is reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership of Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and/or their subsidiaries, subject, in the case of salary or fees in respect of directors appointed by, and representatives of, the Sponsor, to the aggregate cap set forth in clause (a) of the definition of “Sponsor Fees”, (3) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and/or its subsidiaries), Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and their subsidiaries; and (4) pay costs and expenses, including any public company costs, associated with the compliance by Holdings with the requirements and/or regulations applicable to public companies, including, without limitation, the “Sxxxxxxx-Xxxxx” legislation and related regulatory rules and regulations promulgated thereunder;
(B) to pay Taxes due and payable by such Parent Company to any taxing authority and that are attributable to the income or operation of Holdings, Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers or their Restricted Subsidiaries, including any consolidated, combined or similar income tax liabilities attributable to taxable income of Holdings, Intermediate Holdings, CP Holdings LLC, Buyer, Borrowers and their Restricted Subsidiaries; provided that such dividends Tax payment shall not exceed the Taxes of the Borrowers and their Restricted Subsidiaries that would be payable if the Borrowers and their Restricted Subsidiaries were a separate consolidated, combined, unitary or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrowergroup; provided, further, that, solely for purposes further that the amount permitted under this subclause (B) relating to Taxes that are attributable to the taxable income of this clause (i), Unrestricted Subsidiaries in any period shall be limited to the amount of dividends and other distributions actually made by such dividends Unrestricted Subsidiaries to any Restricted Subsidiary for such purpose;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or distributions declared operations of any subsidiary of Holdings, other than Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and/or their subsidiaries), Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and their Restricted Subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and/or their subsidiaries), Holdings, Intermediate Holdings, CP Holdings LLC, Buyer, the Borrowers and their Restricted Subsidiaries; and
(E) to finance any Investment permitted under Section 6.6 (provided that (x) any Restricted Payment under this clause (a)(i)(E) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to a Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into a Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.6 as if undertaken as a direct Investment by the relevant Borrower or the relevant Restricted Subsidiary; provided further, any Fiscal Quarter property received by a Borrower or any Restricted Subsidiary in connection with such transaction shall only increase the Available Amount to the extent the fair market value of such property (as to which determined in good faith by the Board of Directors of the applicable Borrower) exceeds the aggregate amount of Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declareda)(i)(E);
(ii) the Borrower Borrowers may pay (or may make Restricted Payments to allow any Parent Company to) repurchase, redeem, retire redeem or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Borrowers or any Restricted Subsidiary (or of the Manager or any Affiliate thereof):Borrowers:
(A) with Cash cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Restricted Subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Borrowers or any Subsidiary (or of the Manager or Borrowers); provided, that at the time any Affiliate thereof)) in an amount not to exceed, in any Fiscal Yearsuch Restricted Payment is made and after giving pro forma effect thereto, the greater aggregate amount of $25,000,000 and 0.18% of Consolidated Total Assets Restricted Payments made as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if such date pursuant to this Section 6.4(a)(ii)(A) shall not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Yearsexceed $5,000,000;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the a Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the relevant Borrower or any Restricted Subsidiary (other than any Subsidiary), but only to the extent such proceeds have not otherwise been applied to increase the Available Amount or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount to make Restricted Payments or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Restricted Debt Payments hereunder; or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower Borrowers may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount (excluding any Growth Amount) on such date that the such Borrower elects to apply to this clause (iii)(A) (iii)(A), and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects Borrowers elect to apply to this clause (iii)(B);
(iv) the Borrower Borrowers may make Restricted Payments consisting of Cash (i) to any Parent Company to enable such Parent Company to make cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above;
(v) the Borrower Borrowers may make Restricted Payments to repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Borrowers may make Restricted Payments, the proceeds of which are applied on the Closing Date, solely to effect the consummation of, the Transactions;
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Borrowers may consummate any transaction permitted by Section 6.06 Section 6.6 (other than Sections 6.06(j6.6(i) and (t(s)), Section 6.07 Section 6.7 (other than Section 6.07(gSection 6.7(g)) and Section 6.09 Section 6.8 (other than Sections 6.09(d), (j) and (qSection 6.8(d));
(viii) other Restricted Payments; provided that (x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), has occurred and is continuing or would result therefrom and (fy) or (g) exists, minus any amounts then reallocated at the election time any such Restricted Payment is made and after giving pro forma effect thereto, the aggregate amount of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed made as of such date pursuant to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)this Section 6.4(a)(viii) shall not exceed $5,000,000; and
(xiiiix) the Borrower may declare and make dividend payments or any other Restricted Payments payable solely in Payment subject to compliance with the Capital Stock of the BorrowerPayment Conditions.
(b) The Borrower Borrowers shall not, nor shall it the Borrowers permit any Restricted Subsidiary to, make any Prepayment payment in cash on or in respect of principal of or interest on any (x) Junior Lien Indebtedness, (y) Junior Indebtedness and (z) unsecured Indebtedness permitted hereunder (the Indebtedness described in clauses (x) through (z), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted to be incurred pursuant to Section 6.01Section 6.1(m);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower Holdings and/or any capital contribution in respect of Qualified Capital Stock of the BorrowerBorrowers, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except but only to the extent such amount is proceeds have not otherwise been applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to increase the Available Amount or the Available Excluded Contribution Amount, to make Restricted Payments or Restricted Debt Payments hereunder, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower Borrowers or any Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01Section 6.1;
(viiv) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount (excluding any Growth Amount) on such date that the Borrower elects Borrowers elect to apply to this clause (vi)(A) (iv)(A), and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects Borrowers elect to apply to this clause (iv)(B);
(vi)(B)v) customary AHYDO Payments;
(vi) other Restricted Debt Payments; provided that (A) no Event of Default has occurred and is continuing or would result therefrom, and (B) at the time any such Restricted Debt Payment is made and after giving pro forma effect thereto, the aggregate amount of Restricted Debt Payments made as of date pursuant to this clause (vi) shall not exceed $5,000,000; and
(Avii) any other Restricted Debt Payments of Junior Debt made subject to compliance with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted AcquisitionPayment Conditions.
Appears in 1 contract
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(v) (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general operating and compliance costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of dividends management, managers and/or consultants of any Parent Company), in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in any Fiscal Quarter; provided that and/or its subsidiaries) and/or its subsidiaries (and/or Joint Ventures);
(B) to pay franchise, excise and similar Taxes, and other fees, Taxes and expenses, required to maintain the organizational existence of such dividends or similar distributions may be paid by Parent Company;
(C) to pay customary salary, bonus, long-term incentive, severance and other benefits (including payment to certain service providers of the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made its Subsidiaries pursuant to this clause any equity plan (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions whether in the form of options, cash settled options or Cash Equivalents notwithstanding whether dividends otherwise)) payable to Permitted Payees, as well as applicable employment, social security or similar taxes in a form connection therewith, to the extent such salary, bonuses, severance and other benefits are attributable to the operations of the Borrower and/or its subsidiaries (and/or Joint Ventures), in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
(D) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than cash the Borrower and/or its subsidiaries), the Borrower and its subsidiaries (and/or any Joint Ventures);
(E) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or Cash Equivalents would be sufficient operations of any subsidiary of any Parent Company other than the Borrower and/or its subsidiaries), the Borrower and its subsidiaries (and/or Joint Ventures);
(F) to maintain pay (x) fees and expenses related to any debt and/or equity offerings (including refinancings), Investments and/or acquisitions permitted or not restricted by this Agreement (whether or not consummated, and including advisory, refinancing, subsequent transaction and exit fees of any Parent Company of the Borrower’s REIT Status) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering or the issuance of debt securities, Public Company Costs; and
(G) to finance any Investment permitted under Section 6.06 as if such Parent Company were subject to Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(G) shall be made substantially concurrently with the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith and (y) the relevant Parent Company shall, promptly following the closing or consummation thereof or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declaredSubsidiary);
(ii) the Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redeemredemption, retire retirement or otherwise acquire other acquisition or retire retirement for value the of Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Permitted Payee:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted PaymentPayments, amounts paid in respect of promissory notes issued pursuant to evidence any obligation to repurchaseSection 6.01(o)), redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an aggregate amount not to exceed, in any Fiscal Year, exceed (1) the greater of $25,000,000 21,250,000 and 0.1825% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisin any Fiscal Year, which, if not used in such any Fiscal Year, shall may be carried forward to succeeding subsequent Fiscal Years;Years or carried back to the immediately preceding Fiscal Year (in each case, until so applied) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding clause (1); plus
(B) with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any in respect of Qualified Capital Stock issued by the Borrower or such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)Restricted Subsidiary); orplus
(C) with the net proceeds of any key-man life insurance policies; plus
(D) with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Capital Stock of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the Borrower may make additional Restricted Payments in an amount not to exceed (1) (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(Aiii)(1)(A) and/or plus (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(Biii)(1)(B) (plus, without duplication of amounts referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts) minus (2) any utilization of the Available RP Capacity Amount in reliance on unused capacity under the immediately preceding clause (1);
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company, or in connection with dividends, share splits, reverse share splits (or any combination thereof) and mergers, consolidations, amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder, (ii) with respect to convertible Indebtedness, (A) of interest and/or principal upon maturity thereof, upon any required repurchase thereof or upon any option redemption thereof, (B) to honor any conversion request by a holder thereof (including payments in lieu of fractional shares in connection therewith) and (C) to otherwise make payments thereon in accordance with its terms and (iii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (B) repurchases of Capital Stock in consideration of the Borrowerpayments described in sub clause (A) above, including demand repurchases in connection with the exercise of stock options and the issuance of restricted stock units or similar stock based awards;
(v) the Borrower may repurchase repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), or make Restricted Payments to any Parent Company to enable it to repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with), the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) the Borrower may make Restricted Payments the proceeds of which are applied (i) on or about the Closing Date, solely to effect the consummation of the Transactions, (ii) on and after the Closing Date, to pay Transaction Costs with respect to the Transactions, (iii) [reserved]] and (iv) to satisfy any settlement of claims or actions in connection with the Transactions or to satisfy indemnity or other similar obligations in connection with the Transactions;
(vii) [reserved]the Borrower may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) an amount equal to 7.00% per annum of the Market Capitalization of the Borrower (or its direct or indirect Parent Company, as applicable) and its subsidiaries at the time of declaration thereof, which, if not used in any Fiscal Year, may be carried forward to subsequent Fiscal Years (until so applied) minus (B) any utilization of the Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause (A);
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or Capital Stock of any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and ), (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock and (iii) if, immediately prior to the retirement of Treasury Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this , the declaration and payment of dividends thereon by the Borrower was permitted under the preceding clause (viiii) shall not be applied or (ii), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used as to redeem, repurchase, defease, discharge, retire or otherwise acquire any Cure Amount Capital Stock of any Parent Company) in an aggregate amount per annum no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such redemption, repurchase, defeasance, discharge, retirement or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amountother acquisition;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 5.20 (other than Sections 6.09(dSection 5.20(b), (jd), (n) and or (qo));
(x) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $350,000,000 42,500,000 and 2.550% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), minus (fB) or (g) exists, minus any amounts then reallocated at the election utilization of the Borrower Available RP Capacity Amount in reliance on unused capacity under immediately preceding clause (and without duplication) to Section 6.01(uA), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved]the Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section 6.04(a);
(xii) the Borrower may make any Restricted Payment constituting the distribution or payment of Receivables Fees;
(xiii) the Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section 1.04(e), the First Lien Leverage Ratio does not exceed 3.85:1.00, calculated on a Pro Forma Basis;
(xiv) [reserved];
(xv) the Borrower may make Restricted Payments in amounts required for any Parent Company of the Borrower to pay consolidated, combined or similar foreign, federal, state or local income or similar Taxes of a tax group that includes the Borrower and/or its subsidiaries and whose common parent is a direct or indirect parent of the Borrower, to the extent such income or similar Taxes are attributable to the income of the Borrower and its subsidiaries, provided that the amount of such Restricted Payments shall not exceed the amount of Taxes that the Borrower and its subsidiaries would have been required to pay as a standalone consolidated, combined or similar foreign, federal, state or local tax group, provided, further, that the amount of such Restricted Payments with respect to any Taxes attributable to any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings, the Borrower or any Restricted Subsidiary for the purposes of paying such consolidated, combined or similar foreign, federal, state or local income or similar taxes;
(xvi) the Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization;
(xvii) the Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or Indebtedness debt owed to the Borrower any Loan Party or any Restricted Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary bythat owns one or more Unrestricted Subsidiaries, provided that such Restricted Subsidiary owns no other material assets other than Capital Stock of one or more Unrestricted Subsidiaries (Subsidiaries), in each case other than Unrestricted Subsidiaries, the primary assets of which are cash Cash and/or Cash Equivalents contributed Equivalents; provided that any such Capital Stock or debt that represents an Investment by the Borrower and its or any Restricted Subsidiaries); andSubsidiary shall be deemed to continue to charge (as utilization) the respective clause under Section 6.06 pursuant to which such Investment was made;
(xiiixviii) the Borrower may declare make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential), pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07 or any other transaction permitted hereunder;
(xix) the Borrower may make dividend a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary to the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise be Restricted Payments and (B) would be permitted by Section 5.20;
(xx) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Payments payable solely Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned Restricted Subsidiary, to Borrower and any other Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests of the Borrower.relevant class of Capital Stock);
(bxxi) The the Borrower shall not, nor shall it permit any may make a Restricted Subsidiary to, make any Prepayment Payment in respect of principal of any Junior Debt, including any sinking fund required withholding or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) non-U.S. Taxes with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement Permitted Payee and any repurchases of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation consideration of such Permitted Acquisition.payments, including deemed repurchases in conn
Appears in 1 contract
Samples: First Lien Credit Agreement (Ranpak Holdings Corp.)
Restricted Payments; Restricted Debt Payments. (a) The No Borrower shall, nor shall not pay it permit any of its Restricted Subsidiaries through any manner or makemeans or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payment, Restricted Debt Payment or sell any Disqualified Capital Stock except that:
(ia) the Borrower may make with respect to Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause Payments:
(i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any each Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to any Borrower, and other Restricted Subsidiaries of such Borrower (i) redeemand, repurchasein the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, retire or otherwise acquire to any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or and any other Restricted Subsidiary in exchange for, or out and to each other owner of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital Restricted Subsidiary based on their relative ownership interests of the Borrower and/or any Restricted Subsidiary in respect relevant class of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiiiii) the each Borrower and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock (including Disqualified Capital Stock permitted by Section 6.01) of such Person (and, in the case of such a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to any Borrower and any other Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests of the Borrowerrelevant class of Capital Stock);
(iii) each Borrower and its Restricted Subsidiaries may make Permitted Tax Payments;
(iv) each Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings (1) to the extent necessary to permit Holdings to pay reasonable and customary general administrative costs and expenses and out-of-pocket legal, accounting and filing and other general corporate overhead costs of Holdings (including, without limitation, reasonable and customary salaries and benefits of officers and employees of Holdings) and to pay franchise taxes and other fees required to maintain its organizational existence of Holdings or any parent of Holdings actually incurred by Holdings or such parent of Holdings, which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrowers and its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by Holdings or any Restricted Subsidiary or (y) the applicable payment is treated by Holdings or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.07), (2) to the extent necessary to permit Holdings, without duplication of any Permitted Tax Payments, to discharge the consolidated tax liabilities of Holdings and its Subsidiaries when and as due, to the extent such liabilities are attributable to the income of Holdings and its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent of Cash received from the applicable Unrestricted Subsidiary for payment of its share of such tax liability by any Borrower or any Restricted Subsidiary, (3) so long as no Default or Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom, to the extent necessary to permit Holdings to pay directors’ fees (other than pursuant to the TCP Director Agreement), expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrowers and its Restricted Subsidiaries, in each case, so long as Holdings applies the amount of any such Restricted Payment for such purpose (but, in each case, excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of Holdings other than the Borrowers and/or their respective Subsidiaries) and (4) to the extent necessary to permit Holdings to make payments permitted pursuant to Sections 6.12(h) and (i);
(v) so long as no Event of Default shall have occurred and be continuing or shall be caused thereby, any Borrower and its Restricted Subsidiaries may make Restricted Payments or otherwise transfer funds to Holdings utilized for the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings held by any current or former officer, director, employee or consultant of such Borrower or any of its Restricted Subsidiaries, or his or her estate, spouse, former spouse, or family member (or for the payment of principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $3,000,000 in any Fiscal Year;
(vi) on the Closing Date, the Borrowers and the Restricted Subsidiaries may make any Restricted Payment necessary to consummate the Recapitalization and the Transactions;
(vii) [reserved];
(viii) so long as (x) no Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing or would immediately result therefrom and (y) the aggregate amount of such Restricted Payments shall not exceed the sum of (i) 5.00% of the then outstanding principal amount of Subordinated Term Loans in any Fiscal Year, the Borrowers and the Restricted Subsidiaries may make Restricted Payments to Holdings necessary to permit Holdings to make any required payments of accrued and unpaid cash-pay interest on the Subordinated Term Loans plus (ii) all fees (including any annual administrative fee), costs and expenses thereunder (other than payments that are prohibited by any Subordination Agreement);
(ix) so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would immediately result therefrom, the Borrowers may make Restricted Payments to Holdings in an amount necessary to permit Holdings to repay in full all amounts outstanding under the Subordinated Credit Agreement, including principal, accrued and unpaid interest and all fees, costs and expenses incurred in connection therewith; provided that (x) the Subordinated Term Loans and all commitments and guarantees in respect thereof shall be terminated and released, (y) the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) shall not exceed 4.25:1.00 for the most recently ended Test Period and (z) the Total Net Leverage Ratio calculated on a Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) shall not exceed 5.75:1.00 for the most recently ended Test Period;
(x) the Borrowers may make Restricted Payments to effect the payments contemplated by Sections 6.12(h);
(xi) so long as (i) no Event of Default shall have occurred and be continuing or would immediately result therefrom and (ii) the Total Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) does not exceed 4.00:1.00 for the most recently ended Test Period, the Borrowers and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement, redemption or other acquisition for value of Capital Stock of Holdings (or any direct or indirect parent thereof); and
(xii) so long as no Event of Default shall have occurred and be continuing or would immediately result therefrom, the Borrowers and the Restricted Subsidiaries may make Restricted Payments using the Available Amount in effect at such time; provided that immediately after giving effect to such Restricted Payment, the Total Net Leverage Ratio computed on a Pro Forma Basis (including after giving effect to such Restricted Payment and the incurrence of any Indebtedness in connection therewith) for the most recently ended Test Period shall be less than 4.75:1.00 for the most recently ended Test Period; provided, further, that if such Restricted Payment is in an aggregate amount greater than $5,000,000, the Borrower Representative shall, promptly following the request of Administrative Agent, deliver to Administrative Agent a certificate from an Authorized Officer of the Borrower Representative demonstrating the calculation of the Available Amount.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in with respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect the Borrowers and the Restricted Subsidiaries may make repayments of intercompany Indebtedness solely to the extent such Indebtedness is permitted by Section 6.01(b), subject to the subordination and/or intercreditor provisions applicable to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01such Indebtedness;
(ii) as part the Borrowers and the Restricted Subsidiaries may make Restricted Debt Payments in connection with a Permitted Refinancing of an Junior Financing, subject to the subordination and/or intercreditor provisions applicable high yield discount obligation catch-up paymentto any such Indebtedness;
(iii) payments the Borrowers and the Restricted Subsidiaries may make Restricted Debt Payments in the form of regularly scheduled interest (including a conversion or exchange of any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due Junior Financing to Capital Stock (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereofDisqualified Capital Stock) of Holdings (or any of its direct or indirect parent companies);
(iv) so long as, no Event of Default has occurred and is continuing or would immediately result therefrom, the Borrowers and the Restricted Subsidiaries may make Restricted Debt Payments using the Available Amount in effect at such time; provided that immediately after giving effect to such Restricted Debt Payment, the Total Net Leverage Ratio computed on a Pro Forma Basis (including after giving effect to such Restricted Debt Payment and the incurrence of any Indebtedness in connection therewith) shall be less than 4.75:1.00 as of the end of most recently ended Test Period; provided, further, that if such Restricted Debt Payment is in an aggregate amount greater than $5,000,000, the Borrower Representative shall, promptly following the request of Administrative Agent, deliver to Administrative Agent a certificate from an Authorized Officer of the Borrower Representative demonstrating the calculation of the Available Amount;
(v) the Borrowers and the Restricted Subsidiaries may make additional Restricted Debt Payments in an aggregate amount not respect of Junior Financings, so long as, (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange forPayment the Total Net Leverage Ratio calculated on a Pro Forma Basis as of the end of most recently ended Test Period is less than 4.50:1.00, or with proceeds and satisfaction of any issuance of, Qualified Capital Stock such test shall be evidenced by a certificate from an Authorized Officer of the Borrower and/or any capital contribution Representative demonstrating such satisfaction calculated in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;reasonable detail; and
(vi) so long as no Event of Default has occurred and is continuing, the Borrowers and the Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to Subsidiaries may make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) respect of any “earn-outs” or other Indebtedness incurred by any Borrower and/or any Restricted Subsidiary consisting of the definition deferred purchase price of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed property acquired in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such any Permitted Acquisition.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to (i) pay general administrative and operating costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to officers, employees, members of management, managers, employees and/or consultants of any Parent Company (and/or any Immediate Family Member of any of the foregoing)) and franchise fees, franchise Taxes and similar fees, Taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, Buyer, the Borrower and/or its subsidiaries), Intermediate Holdings, Buyer, the Borrower and its subsidiaries; provided, that Restricted Payments made pursuant to this Section 6.04(a)(i)(A)(i) shall not exceed $5,000,000 in any Fiscal Year, (ii) pay customary salary or fees payable to directors of any Parent Company (and/or any Immediate Family Member of the foregoing), which is reasonable and customary and incurred in the ordinary course of business, to the extent attributable to the ownership of Intermediate Holdings, Buyer, the Borrower and/or its subsidiaries, subject, in the case of salary or fees in respect of directors appointed by, and representatives of, the Sponsor, to the aggregate cap set forth in clause (a) of the definition of “Sponsor Fees”, (iii) pay any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of Holdings (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, Buyer, the Borrower and/or its subsidiaries), Intermediate Holdings, Buyer, the Borrower and its subsidiaries; and (iv) pay costs and expenses, including any public company costs, associated with the compliance by Holdings with the requirements and/or regulations applicable to public companies, including, without limitation, the “Sxxxxxxx-Xxxxx” legislation and related regulatory rules and regulations promulgated thereunder;
(B) to pay Taxes due and payable by such Parent Company to any taxing authority and that are attributable to the income or operation of Holdings, Intermediate Holdings, Buyer, the Borrower or its subsidiaries, including any consolidated, combined or similar income tax liabilities attributable to taxable income of Holdings, Intermediate Holdings, Buyer, the Borrower and its subsidiaries; provided that the amount permitted under this subclause (B) relating to Taxes that are attributable to the taxable income of Unrestricted Subsidiaries in any period shall be limited to the amount of dividends and other distributions actually made by such Unrestricted Subsidiaries to any Restricted Subsidiary for such purpose;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of Holdings other similar distributions on account than Intermediate Holdings, Buyer, the Borrower and/or its subsidiaries), Intermediate Holdings, Buyer, the Borrower and its subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to Holdings (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of Holdings other than Intermediate Holdings, Buyer, the Borrower and/or its subsidiaries), Intermediate Holdings, Buyer, the Borrower and its subsidiaries; and
(E) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(E) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Capital Stock declared Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower in any Fiscal Quarteror the relevant Restricted Subsidiary; provided that such dividends or similar distributions may be paid further, any property received by the Borrower within 60 calendar days following or any Restricted Subsidiary in connection with such transaction shall only increase the date that Available Amount to the extent the fair market value of such dividend or other distribution is declared property (as determined in good faith by the board of directors of the Borrower; provided, further, that, solely for purposes of this clause (i), ) exceeds the aggregate amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declareda)(i)(E);
(ii) the Borrower may pay (or may make Restricted Payments to allow any Parent Company to) repurchase, redeem, retire redeem or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Restricted Subsidiary (or of the Manager or any Affiliate thereof):Borrower:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Restricted Subsidiary held by any future, present or former employee, director, member of management, officer, manager officer or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any Subsidiary (or of the Manager or Borrower); provided, that at the time any Affiliate thereof)) in an amount not to exceed, in any Fiscal Yearsuch Restricted Payment is made and after giving pro forma effect thereto, the greater aggregate amount of $25,000,000 and 0.18% of Consolidated Total Assets Restricted Payments made as of such date pursuant to this Section 6.04(a)(ii)(A) shall not exceed $5,000,000 in the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Yearsaggregate;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, of the Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any Subsidiary), but only to the extent such proceeds have not otherwise been applied to increase the Available Amount or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount to make Restricted Payments or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Restricted Debt Payments hereunder; or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in sub-clause (A) above;
(v) the Borrower may make Restricted Payments to repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeemPayments, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of which are applied on the substantially concurrent sale (other than Closing Date, solely to effect the Borrower and/or any Restricted Subsidiary) consummation of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution AmountTransactions;
(ixvii) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j6.06(i) and (ts)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 6.08 (other than Sections 6.09(d), (j) and (qSection 6.08(d));
(viii) other Restricted Payments; provided, that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) at the Borrower may make time any such Restricted Payment is made and after giving pro forma effect thereto, the aggregate amount of Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets made as of the last day such date pursuant to this Section 6.04(a)(viii) shall not exceed $5,000,000; and
(ix) any other Restricted Payment; provided that after giving effect to such Restricted Payment, (x) no Event of the most recently ended Test Period calculated Default has occurred and is continuing or would result therefrom and (y) on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the BorrowerTotal Leverage Ratio shall not exceed 2.75:1.00.
(b) The Borrower shall not, nor shall it the Borrower permit any Restricted Subsidiary to, make any Prepayment payment in Cash on or in respect of principal of or interest on any (x) Junior Lien Indebtedness and (y) Junior Indebtedness (the Indebtedness described in clauses (x) and (y), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted to be incurred pursuant to Section 6.016.01(m);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except but only to the extent such amount is proceeds have not otherwise been applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to increase the Available Amount or the Available Excluded Contribution Amount, to make Restricted Payments or Restricted Debt Payments hereunder, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower or any Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(viiv) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(Aiv)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(Biv)(B);
(v) customary AHYDO Payments;
(vi) other Restricted Debt Payments; provided, that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) at the time any such Restricted Debt Payment is made and after giving pro forma effect thereto, the aggregate amount of Restricted Debt Payments made as of such date pursuant to this Section 6.04(b)(vi) shall not exceed $5,000,000; and
(Avii) any other Restricted Debt Payments Payments; provided that (x) no Event of Junior Debt made with Declined Proceeds Default has occurred and is continuing or would result therefrom and (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance y) on this Section 6.04(b)(vii)(A) a Pro Forma Basis, the Total Leverage Ratio shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisitionexceed 2.75:1.00.
Appears in 1 contract
Samples: Term Loan Agreement (Concrete Pumping Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower Loan Parties shall not pay or make, directly or indirectly, any Restricted Payment, except that:that (provided that none of the following shall be deemed to permit a Division/Series Transaction):
(i) the Borrower Borrowers may make Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by to the Borrower in extent necessary to permit any Fiscal Quarter; provided that such dividends Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar distributions may be paid expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the Borrower within 60 calendar days following extent attributable to the date ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrowers and/or their subsidiaries), and/or its subsidiaries;
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such dividend Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other distribution is declared by than the Borrower; provided, further, that, solely for purposes of this clause (iBorrowers and/or their subsidiaries), the amount Borrowers and their subsidiaries;
(D) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such dividends premiums, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrowers and/or their subsidiaries), the Borrowers and their subsidiaries;
(E) to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, investments or acquisitions (provided that the Borrower may make such distributions in the form whether or not consummated) and expenses and indemnities of cash any trustee, agent, arranger, underwriter or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) similar role, and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering or an offering of public debt securities, Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to a Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into a Borrower and or one or more of its Restricted Subsidiaries, determined in good faith each case, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the such Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrowers and/or their subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower Borrowers may pay make payments (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the any Parent Company, any Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):subsidiary:
(A) so long as no Event of Default exists at the time of the payment thereof or would result therefrom, with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the any Parent Company, any Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)subsidiary) in an amount not to exceed, exceed $5,000,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the any Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the any Borrower or any Restricted Subsidiary Subsidiary) in each case, (1) other than any such proceeds Net Proceeds received from the sale of Capital Stock to, or contribution that forms part contributions from, any Borrower or any of any Available Excluded Contribution Amountits Restricted Subsidiaries, Cure Amount or outstanding Contribution Indebtedness Amount or (2) to the extent such proceeds or contribution has increased the Available Amount and is relevant Net Proceeds have not otherwise been applied to incur an applicable transaction under the Available make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Cure Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower Borrowers may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects Borrowers elect to apply to this clause (iii)(Aiii) and/or so long as (Bx) no Event of Default exists at the time of the payment thereof or would result therefrom and (y) the portionTotal Leverage Ratio, if anycalculated on a Pro Forma Basis, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(Bwould not exceed 6.00:1.00);
(iv) the Borrower Borrowers may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of any Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the Borrowerpayments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower Borrowers may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower Borrowers may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the any Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the any Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the any Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the any Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the a Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Borrowers may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (qj));
(x) so long as no Event of Default exists at the Borrower time of the payment thereof or would result therefrom, the Borrowers may make Restricted Payments in an aggregate amount not to exceed (A) the greater of $350,000,000 13,000,000 and 2.510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) the outstanding amount of Investments made by the Borrowers or any Restricted Subsidiary in reliance on Section 6.06(q)(i)(B) minus (C) the amount of Restricted Debt Payments made by the Borrowers or any Restricted Subsidiary in reliance on Section 6.04(b)(iv)(B);
(xi) the Borrowers may make Restricted Payments to Holdings for the purpose of enabling Holdings to pay the cash portion of the purchase price for the common shares of Mazooma and the Mazooma New Preferred Shares as and when acquired by Holdings and provided that promptly after Holdings acquires such common shares or Mazooma New Preferred Shares, such shares are contributed to the Canadian Borrower; and
(xii) the Borrowers may make Restricted Payments so long as (i) no Event of Default exists at the time of the payment thereof or would result therefrom and (ii) the Total Leverage Ratio, calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrowerwould not exceed 4.00:1.00.
(b) The Borrower Borrowers shall not, nor shall it they permit any Restricted Subsidiary to, make any Prepayment prepayment in Cash in respect of principal of or interest on any Junior Indebtedness, Junior Lien Indebtedness or material unsecured Indebtedness (in each case, other than Indebtedness among Holdings, the Borrowers and/or their subsidiaries) (such Indebtedness, the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt Restricted Debt, in each case, more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default exists at the time of the payment thereof or would result therefrom, Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, greater of Section 6.04(a)(x$13,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period plus (B) at such time the election of determination that the Borrower elects Representative, the amount of any Restricted Payments then permitted to reallocate to this be made by the Borrowers in reliance on Section 6.04(b)(iv6.04(a)(x)(A) minus (C) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on Section 6.06(q)(i)(C);
(v) (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the a Borrower and/or any capital contribution in respect of Qualified Capital Stock of the a Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the a Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-in- kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects Borrowers elect to apply to this clause (vi)(Avi), so long as (x) no Event of Default exists at the time of the payment thereof or would result therefrom and (y) the Total Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 6.00:1.00;
(vii) Restricted Debt Payments in an unlimited amount; provided that (A) no Event of Default exists at the time of the payment thereof or would result therefrom and (B) the portionTotal Leverage Ratio, if anycalculated on a Pro Forma Basis, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B)would not exceed 5.00:1.00; and
(Aviii) mandatory prepayments of Restricted Debt Payments (and related payments of Junior Debt interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A6.04(b)(viii) shall not increase the amount available under clause (a)(ixa)(viii) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition).
Appears in 1 contract
Samples: Credit Agreement (Nuvei Corp)
Restricted Payments; Restricted Debt Payments. (a) The Each Borrower shall not not, nor shall it permit any of its Restricted Subsidiaries to, pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower Borrowers may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to any director, officer, employee, member of dividends or other management, manager and/or consultant of any Parent Company) and franchise Taxes and similar distributions on account fees and expenses required to maintain the organizational existence of such Parent Company, in each case, to the extent attributable to any Borrower and any of its Capital Stock declared Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by any Borrower or any Restricted Subsidiary or (y) the applicable payment is treated by any Borrower or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.06) and which are reasonable and customary and incurred in the ordinary course of business, plus any Fiscal Quarterreasonable and customary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than any Borrower and/or its subsidiaries);
(B) to discharge the consolidated, combined, unitary or similar Tax liabilities of such Parent Company and its subsidiaries when and as due, to the extent such liabilities are attributable to the income of any Borrower and any of its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by any Borrower or any Restricted Subsidiary or (y) the applicable payment is treated by any Borrower or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.06); provided that the amount of any such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes payment in respect of this clause (i), any taxable year does not exceed the amount of such dividends Taxes that any Borrower and/or its applicable subsidiary would have paid had such Taxes been paid as standalone companies or distributions declared in as a standalone group;
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent such expenses are attributable to any Fiscal Quarter as Parent Company and/or its subsidiaries, but excluding, for the avoidance of doubt, the portion of any such expenses, if any, that is attributable to which Restricted Payments are made pursuant the ownership or operations of any subsidiary of any Parent Company other than any Borrower and/or its subsidiaries;
(D) to this clause pay any insurance premium that is payable by, or attributable to, any Parent Company and/or its subsidiaries, but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than any Borrower and/or its subsidiaries;
(iE) shall not exceed the greater of to pay (x) fees and expenses related to any debt and/or equity offering, investment and/or acquisition (whether or not consummated) to the amount necessary extent such fees and expenses are attributable to enable any Borrower and any of its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (I) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by any Borrower to maintain or any Restricted Subsidiary or (II) the applicable payment is treated by any Borrower or its REIT Status (provided that the Borrower may make applicable Restricted Subsidiary as an Investment in such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT StatusUnrestricted Subsidiary and is permitted under Section 6.06) and (y) 100.0% after the consummation of estimated Core Earnings a Qualifying IPO or the issuance of public debt Securities, Public Company Costs;
(F) to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to any Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into any Borrower and or one or more of its Restricted Subsidiaries, determined in good faith order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the any Borrower on a run-rate basis as of the date of declaration of or the relevant Restricted PaymentSubsidiary); and
(G) to pay customary salary, for bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the full fiscal quarter foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of any Borrower and/or its subsidiaries, in which each case, so long as such Parent Company applies the applicable amount of any such Restricted Payment is declaredfor such purpose;
(ii) the any Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary thereof held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the any Parent Company, any Borrower or any Subsidiary (or subsidiary of any of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant foregoing (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceedoptions, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options restricted stock units or stock appreciation rights or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) equity-linked interests issued with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.Capital Stock):
Appears in 1 contract
Samples: Credit Agreement (Certara, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay Other than in connection with the 2024 SS&C International Reorganization Transactions, declare or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting may be made by any Restricted Subsidiary of dividends the Parent to the Parent or to any other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal QuarterRestricted Subsidiary; provided that in the case of a Restricted Payment made by non-Wholly Owned Subsidiary, such dividends or similar distributions may Restricted Payment shall be paid made by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount Subsidiary to each direct parent company of such dividends Subsidiary on a pro rata basis (or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed on a more favorable basis from the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings perspective of the Borrower and its Subsidiaries, determined in good faith by Parent or any applicable Subsidiary thereof that is the Borrower direct parent company of such Subsidiary) based on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declaredtheir relative ownership interests;
(ii) the Borrower Parent and its Restricted Subsidiaries may pay to for the repurchase, redeemredemption, retire retirement or otherwise acquire other acquisition or retire retirement for value the Capital Stock of the Borrower or any Subsidiary Equity Interests held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Permitted Payee:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;[reserved]; plus
(B) with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock Equity Interests of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Parent; orplus
(C) with the net proceeds of any key-man life insurance policies; plus
(D) with the amount of any cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Equity Interests of the Parent pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the Borrower Parent and its Restricted Subsidiaries may make additional Restricted Payments in an amount not to exceed (A) exceed, so long as no Event of Default exists or results therefrom, the portion, if any, of the Available Amount on such date that the Borrower Parent elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(Biii);
(iv) the Borrower Parent and its Restricted Subsidiaries may (A) make Restricted Payments consisting of Cash cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable forfor Equity Interests of the Parent, or otherwise based onin connection with dividends, Capital Stock share splits, reverse share splits (or any combination thereof) and mergers, consolidations, amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder, (B) honor any conversion request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion and make payments on convertible Indebtedness in accordance with its terms and (C) make Restricted Payments consisting of (x) payments made or expected to be made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (y) repurchases of Equity Interests in consideration of the Borrowerpayments described in sub clause (x) above, including demand repurchases in connection with the exercise of stock options and the issuance of restricted stock units or similar stock based awards;
(v) the Borrower Parent and its Restricted Subsidiaries may repurchase Capital Stock repurchase, redeem, acquire or retire Equity Interests upon (or make provisions for withholdings in connection with), the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock for Equity Interests if such Capital Stock represents Equity Interests represent all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stockfor Equity Interests as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved]the Parent may declare and make annual cash dividend payments to its shareholders in an amount not to exceed the greater of (x) 7.00% per annum of the market capitalization of the Parent based on the Parent’s trailing 30 day weighted average stock price and (y) the amount necessary to pay a dividend of $0.96 per share (as adjusted so that the aggregate amount payable pursuant to this clause (y) is not increased or decreased solely as a result of any stock split, reverse stock split, stock dividend or similar reclassification occurring after the Incremental B-8 Effective Date);
(viii) the Borrower Parent and its Restricted Subsidiaries may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any Capital Stock Equity Interests (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary Parent in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower Parent and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock Parent (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower Parent or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Parent may consummate any transaction permitted by Section 6.06 8.02 (other than Sections 6.06(j8.02(j) and (t)), Section 6.07 8.05 (other than Section 6.07(g8.05(g)) and Section 6.09 8.08 (other than Sections 6.09(d), (j) and (qSection 8.08(d));
(x) so long as no Event of Default exists or results therefrom, the Borrower Parent and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 648,000,000 and 2.530% of Consolidated Total Assets EBITDA as of the last day of the most recently ended Test Period calculated on Period;
(xi) the Parent and its Restricted Subsidiaries may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof or the provision of a Pro Forma Basisredemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section 8.06(a);
(xii) [reserved];
(xiii) so long as no Event of Default under Section 7.01(a)exists or results therefrom, (f) or (g) existsthe Parent and its Restricted Subsidiaries may make additional Restricted Payments so long as the Consolidated Net Leverage Ratio would not exceed 4.75:1.00, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determinationcalculated on a Pro Forma Basis;
(xixiv) [reserved];
(xiixv) [reserved];
(xvi) [reserved];
(xvii) the Borrower Parent and its Restricted Subsidiaries may make Restricted Payments with a distribution, by dividend or otherwise, of the Capital Stock Equity Interests of, or Indebtedness debt owed to the Borrower any Loan Party or a any Restricted Subsidiary by, any Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed Subsidiary; provided that any such Equity Interests or debt that represents an Investment by the Borrower Parent or any Restricted Subsidiary shall be deemed to continue to charge (as utilization) the respective clause under Section 8.02 pursuant to which such Investment was made;
(xviii) the Parent and its Restricted SubsidiariesSubsidiaries may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)), pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 8.05 or any other transaction permitted hereunder;
(xix) the Parent and its Restricted Subsidiaries may make a Restricted Payment in respect of payments made for the benefit of the Parent or any Restricted Subsidiary to the extent such payments could have been made by the Parent or any Restricted Subsidiary because such payments (A) would not otherwise be Restricted Payments and (B) would be permitted by Section 8.08;
(xx) the Parent and its Restricted Subsidiaries may make a Restricted Payment in respect of any payments or deliveries in connection with a Swap Contract (a) by delivery of shares of the Parent’s Qualified Capital Stock or (b) otherwise, to the extent of a payment or delivery received from a Swap Contract (whether such payment or delivery is effected by netting, set-off or otherwise); and
(xiiixxi) the Borrower Parent and its Restricted Subsidiaries may declare and make dividend payments or other a Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment Payment in respect of principal of any Junior Debt, including any sinking fund required withholding or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) non-U.S. Taxes with respect to any purchasePermitted Payee and any repurchases of Equity Interests in consideration of such payments, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed deemed repurchases in connection with a Permitted Acquisition the exercise of stock options or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation the issuance of such Permitted Acquisitionrestricted stock units or similar stock based awards.
Appears in 1 contract
Samples: Incremental Joinder (SS&C Technologies Holdings Inc)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to enable any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar costs and expenses and franchise Taxes, and similar fees, Taxes and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by any Employee Related Person of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (iand/or its Restricted Subsidiaries), the amount Borrower and/or its Restricted Subsidiaries;
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such dividends Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrower and/or its Restricted Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(D) to which pay insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its Restricted Payments are made pursuant Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(E) to this clause (i) shall not exceed the greater of pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, Investments or acquisitions (provided that the Borrower may make such distributions in the form whether or not consummated) and expenses and indemnities of cash any trustee, agent, arranger, underwriter or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) similar Person and (y) 100.0% Public Company Costs;
(F) to finance any Investment permitted under Section 6.05 (provided, that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of estimated Core Earnings such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired with or into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.05 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
(G) to pay customary salary, bonus, incentive, severance and other benefits (including payments pursuant to any profits, interest or equity plan) payable to any Employee Related Person of any Parent Company to the extent such salary, bonuses, incentive and other benefits are attributable and reasonably allocated to the operations of the Borrower and and/or its Restricted Subsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay (or make Restricted Payments to enable any Parent Company to) repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company held by any Employee Related Person of any Parent Company, the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):its subsidiaries:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, exceed the greater of (i) of $10,000,000 and (ii) 10.0% of Consolidated Adjusted EBITDA in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to the next two succeeding Fiscal Years;
, it being understood that any such amount carried over to any Fiscal Year shall be deemed to be used (Bin such order as shall be determined by the Borrower) with in such Fiscal Year prior to the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock usage of the Borrower (to the extent amount set forth above otherwise available for such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Fiscal Year; or
(CB) with the net proceeds of any key-man life insurance policiespolicies received by the Borrower and its Subsidiaries during such Fiscal Year;
(iii) from and after the Bridge Loan Conversion Date, the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on at such date time that the Borrower elects to apply to this clause (iii)(Aiii) and/or (Bexcluding any such amounts that were applied to prepay Bridge Loans pursuant to Section 2.10(b)(iv)), provided that, other than in the case of any such portion that is attributable to the Available Equity Contribution Amount, no Event of Default under Section 7.01(a), 7.01(f) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)or 7.01(g) exists or would result therefrom;
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of, or to any Parent Company to enable such Parent Company to make, (A) payments made or expected to be made in respect of required withholding or similar Taxes with respect to any Employee Related Person of any Parent Company, the BorrowerBorrower and/or its Restricted Subsidiaries and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved];from and after the Bridge Loan Conversion Date, the Borrower or any Restricted Subsidiary may make additional Restricted Payments to the extent that such Restricted Payments are made with net proceeds received by the Borrower after the Closing Date from the issuance or sale of Qualified Capital Stock of the Borrower, Holdings or any other Parent Company or proceeds of an equity contribution that are not otherwise applied (in each case, other than a Cure Amount, the PIPE Equity Contribution or the SPAC Equity Contribution or any such amounts that were applied to prepay Bridge Loans pursuant to Section 2.10(b)(iv)), initially made to the Borrower and have been contributed to the common equity of the Borrower (which such equity proceeds so utilized shall not also increase the Available Amount)
(viii) the Borrower may make Restricted Payments (A) in an aggregate amount not to exceed the Tax Distribution Amount and (iB) redeemwithout duplication of preceding clause (A), repurchase, retire or otherwise acquire distributions to finance any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale payments (other than any accelerated payments or payments calculated based on valuation assumptions without regard to actual tax savings, including any such payments arising from a change of control transaction, a contractual breach, or by election of a party to the Borrower and/or any Restricted Subsidiaryagreement) of, Qualified Capital Stock of the Borrower required to be made pursuant to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution AmountTax Receivable Agreement;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate the Transactions and any other transaction permitted by Section 6.05 (other than Sections 6.05(j) and 6.05(t)), Section 6.06 (other than Sections 6.06(jSection 6.06(g)) and (t)), Section 6.07 6.08 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q6.08(d));
(x) from and after the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisBridge Loan Conversion Date, so long as no Event of Default under Section 7.01(a), (f7.01(f) or (g7.01(g) existsexists or would result therefrom, minus any amounts then reallocated at the election of the Borrower (and without duplication) may make additional Restricted Payments in an aggregate amount not to exceed, taken together with any Restricted Debt Payments made in reliance on Section 6.01(u6.03(b)(iv)(B), Section 6.04(b)(ivthe greater of (i) or Section 6.06(q)(iof $15,000,000 and (ii) at such time 15.0% of determinationConsolidated Adjusted EBITDA for the most recently ended Test Period;
(xi) [reserved];
(xii) from and after the Bridge Loan Conversion Date, the Borrower may make additional Restricted Payments with so long as (A) no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom and (B) the Capital Stock ofTotal Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 1.75:1.00;
(xiii) Restricted Payments constituting any part of a Permitted Reorganization; provided that, (i) no Event of Default under Section 7.01(a), 7.01(f) or Indebtedness owed 7.01(g) has occurred and is continuing and (ii) the Loan Guaranties, taken as a whole, are not materially impaired;
(xiv) Restricted Payments at such times and in such amounts as are necessary to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)make Permitted Sponsor Payments; and
(xiiixv) to the Borrower may declare and make dividend extent constituting a Restricted Payment, distributions or payments or other Restricted Payments payable solely of Receivables Fees in the Capital Stock of the Borrowerconnection with a Receivables Facility.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Restricted Debt Payment made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an “applicable high yield discount obligation obligation” catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom, Restricted Debt Payments in an aggregate amount not to exceed exceed, taken together with any Restricted Payments made in reliance on Section 6.03(a)(x), the portion, if any, greater of Section 6.04(a)(x) at such time $15,000,000 and 15.0% of determination that Consolidated Adjusted EBITDA for the Borrower elects to reallocate to this Section 6.04(b)(iv)most recently ended Test Period;
(Av) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest payments with respect to contingent acquisition consideration, including earn-outs, seller notes, holdbacks, purchase price adjustments and other deferred acquisition consideration in connection with any Junior Debt that is acquisition consummated on or prior to the Closing Date, any Investment permitted under Section 6.016.05 or Disposition permitted by Section 6.06;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(Avi), provided that, other than (from and after the Bridge Loan Conversion Date) and (B) in the portion, if any, case of any such portion that is attributable to the Available Excluded Equity Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(BAmount, no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom; and
(Avii) additional Restricted Debt Payments Payments, so long as (x) no Event of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Default under Section 6.04(b)(vii)(A7.01(a), 7.01(f) shall not increase the amount available under clause (a)(ixor 7.01(g) of the definition of “Available Amount” to the extent so applied) exists or would result therefrom and (By) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with Total Net Leverage Ratio, calculated on a Permitted Acquisition or other permitted InvestmentPro Forma Basis, which such assumption by permitted under Section 6.01, and such Junior Debt was would not issued in contemplation of such Permitted Acquisitionexceed 1.75:1.00.
Appears in 1 contract
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to enable any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar costs and expenses and franchise Taxes, and similar fees, Taxes and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by any Employee Related Person of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (iand/or its Restricted Subsidiaries), the amount Borrower and/or its Restricted Subsidiaries;
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such dividends Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrower and/or its Restricted Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(D) to which pay insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its Restricted Payments are made pursuant Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(E) to this clause (i) shall not exceed the greater of pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, Investments or acquisitions (provided that the Borrower may make such distributions in the form whether or not consummated) and expenses and indemnities of cash any trustee, agent, arranger, underwriter or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) similar Person and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering or an offering of public debt securities (including the occurrence of the SPAC Closing Date), Public Company Costs;
(F) to finance any Investment permitted under Section 6.05 (provided, that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired with or into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.05 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
(G) to pay customary salary, bonus, incentive, severance and other benefits (including payments pursuant to any profits, interest or equity plan) payable to any Employee Related Person of any Parent Company to the extent such salary, bonuses, incentive and other benefits are attributable and reasonably allocated to the operations of the Borrower and and/or its Restricted Subsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay (or make Restricted Payments to enable any Parent Company to) repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company held by any Employee Related Person of any Parent Company, the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):its subsidiaries:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, exceed the greater of (i) of $10,000,000 and (ii) 10.0% of Consolidated Adjusted EBITDA in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to the next two succeeding Fiscal Years;
, it being understood that any such amount carried over to any Fiscal Year shall be deemed to be used (Bin such order as shall be determined by the Borrower) with in such Fiscal Year prior to the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock usage of the Borrower (to the extent amount set forth above otherwise available for such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Fiscal Year; or
(CB) with the net proceeds of any key-man life insurance policiespolicies received by the Borrower and its Subsidiaries during such Fiscal Year;
(iii) solely after the SPAC Closing Date, the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on at such date time that the Borrower elects to apply to this clause (iii)(Aiii), provided that, other than in the case of any such portion that is attributable to the Available Equity Contribution Amount, no Event of Default under Section 7.01(a), 7.01(f) and/or (Bor 7.01(g) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)exists or would result therefrom;
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of, or to any Parent Company to enable such Parent Company to make, (A) payments made or expected to be made in respect of required withholding or similar Taxes with respect to any Employee Related Person of any Parent Company, the BorrowerBorrower and/or its Restricted Subsidiaries and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved]the Borrower may make the Closing Date Dividend;
(vii) [reserved]the Borrower or any Restricted Subsidiary may make additional Restricted Payments to the extent that such Restricted Payments are made with net proceeds received by the Borrower after the Closing Date from the issuance or sale of Qualified Capital Stock of the Borrower, Holdings or any other Parent Company or proceeds of an equity contribution that are not otherwise applied (in each case, other than a Cure Amount, the PIPE Equity Contribution or the SPAC Equity Contribution), initially made to the Borrower and have been contributed to the common equity of the Borrower (which such equity proceeds so utilized shall not also increase the Available Amount);
(viii) the Borrower may make Restricted Payments (A) in an aggregate amount not to exceed the Tax Distribution Amount and (iB) redeemwithout duplication of preceding clause (A), repurchase, retire or otherwise acquire distributions to finance any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale payments (other than any accelerated payments or payments calculated based on valuation assumptions without regard to actual tax savings, including any such payments arising from a change of control transaction, a contractual breach, or by election of a party to the Borrower and/or any Restricted Subsidiaryagreement) of, Qualified Capital Stock of the Borrower required to be made pursuant to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution AmountTax Receivable Agreement;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate the Transactions and any other transaction permitted by Section 6.05 (other than Sections 6.05(j) and 6.05(t)), Section 6.06 (other than Sections 6.06(jSection 6.06(g)) and (t)), Section 6.07 6.08 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q6.08(d));
(x) (A) prior to the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisSPAC Closing Date, so long as no Event of Default under Section 7.01(a), (f7.01(f) or (g7.01(g) existsexists or would result therefrom, minus any amounts then reallocated at the election of the Borrower (and without duplication) may make additional Restricted Payments in an aggregate amount not to exceed, taken together with any Restricted Debt Payments made in reliance on Section 6.01(u6.03(b)(iv)(A), the greater of $5,000,000 and (ii) 5.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period and (B) from and after the SPAC Closing Date, so long as no Event of Default under Section 6.04(b)(iv7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, taken together with any Restricted Debt Payments made in reliance on Section 6.06(q)(i6.03(b)(iv)(B), the greater of (i) at such time of determination$15,000,000 and (ii) 15.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period;
(xi) [reservedReserved];
(xii) solely after the SPAC Closing Date, the Borrower may make additional Restricted Payments with so long as (A) no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom and (B) the Capital Stock ofTotal Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 1.75:1.00;
(xiii) Restricted Payments constituting any part of a Permitted Reorganization; provided that, (i) no Event of Default under Section 7.01(a), 7.01(f) or Indebtedness owed 7.01(g) has occurred and is continuing and (ii) neither the Loan Guaranties, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(xiv) Restricted Payments at such times and in such amounts as are necessary to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)make Permitted Sponsor Payments; and
(xiiixv) to the Borrower may declare and make dividend extent constituting a Restricted Payment, distributions or payments or other Restricted Payments payable solely of Receivables Fees in the Capital Stock of the Borrowerconnection with a Receivables Facility.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Restricted Debt Payment made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an “applicable high yield discount obligation obligation” catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) (A) prior to the SPAC Closing Date, so long as no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom, Restricted Debt Payments in an aggregate amount not to exceed, taken together with any Restricted Payments made in reliance on Section 6.03(a)(x)(A), the greater of $5,000,000 and (ii) 5.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period and (B) after the SPAC Closing Date, so long as no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom, Restricted Debt Payments in an aggregate amount not to exceed, taken together with any Restricted Payments made in reliance on Section 6.03(a)(B)(x), the greater of $15,000,000 and 15.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period;
(v) payments with respect to contingent acquisition consideration, including earn-outs, seller notes, holdbacks, purchase price adjustments and other deferred acquisition consideration in connection with any acquisition consummated on or prior to the Closing Date, any Investment permitted under Section 6.05 or Disposition permitted by Section 6.06;
(vi) solely after the SPAC Closing Date, Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) vi), provided that, other than in the portion, if any, case of any such portion that is attributable to the Available Excluded Equity Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(BAmount, no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom; and
(Avii) solely after the SPAC Closing Date, additional Restricted Debt Payments Payments, so long as (x) no Event of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Default under Section 6.04(b)(vii)(A7.01(a), 7.01(f) shall not increase the amount available under clause (a)(ixor 7.01(g) of the definition of “Available Amount” to the extent so applied) exists or would result therefrom and (By) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with Total Net Leverage Ratio, calculated on a Permitted Acquisition or other permitted InvestmentPro Forma Basis, which such assumption by permitted under Section 6.01, and such Junior Debt was would not issued in contemplation of such Permitted Acquisitionexceed 1.75:1.00.
Appears in 1 contract
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the 116 most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;; 117
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.. 118
Appears in 1 contract
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to enable any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar costs and expenses and franchise Taxes, and similar fees, Taxes and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business), in each case, to the extent attributable to the owenership or other similar distributions on account operations of its Capital Stock declared by any Parent Company, the Borrower in and/or its Restricted Subsidiaries;
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Fiscal Quarter; provided that Parent Company (but excluding, for the avoidance of doubt, the portion of any such dividends expenses, if any, attributable to the ownership or similar distributions may be paid by operations of any subsidiary of any Parent Company other than the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (iand/or its Restricted Subsidiaries), the amount of such dividends or distributions declared in Borrower and/or its Restricted Subsidiaries;
(D) to pay insurance premiums to the extent attributable to any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause Parent Company (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Paymentbut excluding, for the full fiscal quarter in which avoidance of doubt, the applicable portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its Restricted Payment is declaredSubsidiaries), the Borrower and/or its Restricted Subsidiaries;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies[reserved];
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)[reserved];
(iv) the Borrower may make Restricted Payments consisting of Cash payments to Holdings in lieu of an aggregate amount not to exceed the issuance of fractional shares in connection with Tax Distribution Amount;
(v) [reserved];
(vi) the exercise, settlement, grant Borrower may repurchase (or vesting make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock;
(vi) [reserved]Stock as part of a “cashless” exercise;
(vii) [reserved];
(viii) the Borrower or any Subsidiary may make additional Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the extent that such Restricted Payments are made with net proceeds received by the Borrower and/or any Restricted Subsidiary in exchange for, after the Closing Date from the issuance or out sale of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower Borrower, Holdings or any other Parent Company or proceeds of an equity contribution that are not otherwise applied, initially made to the extent any such proceeds are Borrower and have been contributed to the capital common equity of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) [reserved]; and
(x) to the extent constituting a Restricted Payment, the Borrower may consummate the Transactions and any other transaction permitted by Section 6.05 (other than Sections 6.05(j) and 6.05(t)), Section 6.06 (other than Sections 6.06(jSection 6.06(g)) and (t)), Section 6.07 6.08 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q6.08(d));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”). Notwithstanding anything to the contrary set forth in this Section 6.03, except:
(i) with respect no Loan Party shall make any Restricted Payment to any purchase, defeasance, redemption, repurchase, repayment Subsidiary (other than another Loan Party) in the form of Material Intellectual Property; provided that nothing in this sentence shall prohibit any non-exclusive (other than exclusive distribution or other acquisition similar within a specified jurisdiction) license or retirement sublicense of Junior Debt made by exchange forMaterial Intellectual Property to, or out use of Material Intellectual Property by, any Subsidiary in the proceeds ofordinary course of business. For the avoidance of doubt, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock no payments shall be permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited 6.03 unless permitted by the subordination provisions thereofApproved Budget (subject to Permitted Variances);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (Cano Health, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower Representative shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower Representative may make Restricted Payments consisting to the extent necessary to permit any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of dividends management, managers and/or consultants of any Parent Company) and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in Representative and/or its subsidiaries), and/or its subsidiaries;
(B) to pay audit and other accounting and reporting expenses of any Fiscal Quarter; provided that Parent Company to the extent such dividends expenses are attributable to such Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or similar distributions may be paid by operations of any subsidiary of any Parent Company other than the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (iRepresentative and/or its subsidiaries), the amount Borrower Representative and its subsidiaries;
(C) for the payment of any insurance premiums that is payable by or attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such dividends premiums, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrower Representative and/or its subsidiaries), the Borrower Representative and its subsidiaries;
(D) to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of pay (x) the amount necessary any fee and/or expense related to enable the Borrower to maintain its REIT Status any debt or equity offering, investment or acquisition (provided that the Borrower may make such distributions whether or not consummated) and/or any expenses of, or indemnification obligations in the form favor of cash any trustee, agent, arranger, underwriter or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) similar role, and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering or the issuance of public debt Securities, Public Company Costs;
(E) to finance any Investment permitted under Section 6.06 (provided, that (x) any Restricted Payment under this clause (a)(i)(E) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower Representative or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower Representative or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower Representative or the relevant Restricted Subsidiary); and
(F) to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Borrower and Representative and/or its Subsidiariessubsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower Representative may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Representative or any Subsidiary (or of the Manager or any Affiliate thereof):subsidiary:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower any Parent Company or any Subsidiary subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower Representative or any Subsidiary (or of the Manager or any Affiliate thereof)subsidiary) in an amount not to exceed, in any Fiscal Year, the greater of (1) $25,000,000 24,654,625 and 0.18(2) 12.5% of Consolidated Total Assets Adjusted EBITDA as of the last day end of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower Representative or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower Representative or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)Subsidiary); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower Representative may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower Representative elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower Representative elects to apply to this clause (iii)(B);
(iv) the Borrower Representative may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the BorrowerBorrower Representative, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members, including any net settlement or net exercise of any equity-based incentive awards and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower Representative may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock;
(vi) [reserved]the Borrower Representative may make Restricted Payments, the proceeds of which are applied on the Closing Date, solely to effect the consummation of the Transactions;
(vii) [reserved]so long as no Event of Default exists at the time of declaration of such Restricted Payment, following the consummation of the first Qualifying IPO and so long as the Borrower Representative remains a publicly held company, the Borrower Representative may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount not to exceed 7.00% per annum of the market capitalization of the Borrower Representative immediately after such Qualifying IPO;
(viii) the Borrower Representative may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrower Representative and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of clauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower Representative or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower Representative and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower Representative or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower Representative may consummate the Transactions (including the payment of working capital and/or Transaction Costs) any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (qj));
(x) the Borrower Representative may make Restricted Payments in an aggregate amount not to exceed $10,000,000 in any Fiscal Year (minus the greater amount of $350,000,000 any (x) Indebtedness incurred pursuant to the Available RP Capacity Basket (solely to the extent reallocated from this Section 6.04(a)(x)), (y) Restricted Debt Payments made pursuant to Section 6.04(b)(iv) (solely to the extent reallocated from this Section 6.04(a)(x)) and 2.5% of Consolidated Total Assets (z) Investments made pursuant to Section 6.06(ff) (solely to the extent reallocated from this Section 6.04(a)(x)));
(xi) the Borrower Representative may make additional Restricted Payments so long as of the last day of the most recently ended Test Period calculated Payment Conditions applicable to Restricted Payments have been satisfied on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower Representative may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the BorrowerBorrower Representative or of any Parent Company;
(xiii) the Borrower Representative may declare and make dividend payments or other Restricted Payments payable in the form of the equity interests of, or any Indebtedness owed to the Borrower Representative or any Restricted Subsidiary by, any Unrestricted Subsidiary (in each case, other than with respect to any Unrestricted Subsidiary the primary assets of which are Cash and/or Cash Equivalents);
(xiv) the Borrower Representative may declare and make dividend payments or other Restricted Payments with the proceeds of any Disposition made to comply with any order of any Governmental Authority or any Requirements of Law (including as a condition to, or in connection with, the consummation of the Transactions) so long as the Secured Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 3.00 to 1.00; and/or
(xv) the Borrower Representative may declare and make dividend payments or other Restricted Payments, in each case, that are Permitted Tax Distributions.
(b) The Borrower Representative shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment prepayment in Cash in respect of principal of or interest on any Junior DebtRestricted Debt in an amount in excess of the Threshold Amount, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled stated maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt thereof made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other permitted by Section 6.01 and/or refinancing Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.016.01(p);
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed (A) $10,000,000 in any Fiscal Year, plus (B) at the portionelection of the Borrower Representative, if any, the amount of any Restricted Payments then permitted to be made by the Borrower Representative in reliance on Section 6.04(a)(x) at such time of determination (it being understood that the Borrower elects any amount utilized under this clause (B) to reallocate to this make a Restricted Debt Payment shall result in a reduction in availability under Section 6.04(b)(iv6.04(a)(x));
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower Representative and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution AmountBorrower Representative, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Restricted Debt into Qualified Capital Stock of the Borrower Representative and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Restricted Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower Representative elects to apply to this clause (vi)(A) and and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower Representative elects to apply to this clause (vi)(B);
(vii) additional Restricted Debt Payments so long as the Payment Conditions applicable to Restricted Debt Payments have been satisfied on a Pro Forma Basis; and
(Aviii) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition[reserved].
Appears in 1 contract
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay not, nor shall it permit any of its Restricted Subsidiaries through any manner or makemeans or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payment, Restricted Debt Payment or sell any Disqualified Capital Stock except that:
(ia) the Borrower may make with respect to Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause Payments:
(i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any each Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to Borrower, and other Restricted Subsidiaries of Borrower (i) redeemand, repurchasein the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, retire or otherwise acquire to Borrower and any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any other Restricted Subsidiary in exchange for, or out and to each other owner of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital Restricted Subsidiary based on their relative ownership interests of the Borrower and/or any Restricted Subsidiary in respect relevant class of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiiiii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock (including Disqualified Capital Stock permitted by Section 6.01) of such Person (and, in the case of such a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to Borrower and any other Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests of the Borrower.relevant class of Capital Stock);
(iii) Borrower and its Restricted Subsidiaries may make Permitted Tax Payments;
(iv) Borrower may make Restricted Payments to any Parent (1) to the extent necessary to permit such Parent to pay (A) reasonable and customary general administrative costs and expenses and out‑of‑pocket legal, accounting and filing and other general corporate overhead costs of such Parent (including, without limitation, reasonable and customary salaries and benefits of officers and employees of such Parent) and (B) franchise taxes and other fees required to maintain such Parent’s organizational existence, in any case under this clause (1), that are actually incurred by such Parent and are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Borrower and its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by Borrower or any Restricted Subsidiary or (y) the applicable payment is treated by Borrower or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.07), (2) to the extent necessary to permit such Parent, without duplication of any Permitted Tax Payments, to discharge its consolidated tax liabilities when and as due, to the extent such liabilities are attributable to the income of Borrower (or any Parent) and its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent of Cash received from the applicable Unrestricted Subsidiary for payment of its share of such tax liability by Borrower or any Restricted Subsidiary) and (3) so long as no Default or Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom, to the extent necessary to permit such Parent to pay directors’ fees (other than pursuant to the TCP Director Agreement), expenses and any reasonable and customary indemnification claims made by directors or officers of such Parent attributable to the ownership or operations of Borrower and its Restricted Subsidiaries, in each case, so long as such Parent applies the amount of any such Restricted Payment for such purpose (but, in each case, excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of any Parent other than Borrower and its Subsidiaries);
(v) (x) so long as no Event of Default shall have occurred and be continuing or shall be caused thereby, and (y) the Total Net Leverage Ratio (calculated on a Pro Forma Basis immediately before and immediately after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) shall not exceed 4.00:1.00 for the most recently ended Test Period (and satisfaction of such test shall be evidenced by a certificate from an Authorized Officer of Borrower demonstrating such satisfaction in reasonable detail reasonably satisfactory to Administrative Agent), Borrower and its Restricted Subsidiaries may make Restricted Payments or otherwise, to the extent not otherwise prohibited by this Agreement, transfer funds to any Parent to be utilized for the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Borrower (or any Parent) held by any current or former officer, director, employee or consultant of Borrower (or any Parent), or any of its Restricted Subsidiaries, or his or her estate, spouse, former spouse, family member or Affiliate of the foregoing (or for the payment of principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or other agreement or benefit plan of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock in any Fiscal Year may not exceed the greater of (x) $6,000,000 and (y) 12.5% of Consolidated Adjusted EBITDA determined at the time of incurrence of such repurchase, redemption, acquisition or retirement of Capital Stock (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period;”
(vi) Borrower may make Restricted Payments to effect the payments contemplated by Section 6.12(h);
(vii) Borrower may make Permitted Dividends;
(viii) so long as (i) no Event of Default shall have occurred and be continuing or would immediately result therefrom and (ii) the Total Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) does not exceed 4.00:1.00 for the most recently ended Test Period, the Borrower may pay (and the Restricted Subsidiaries may make Restricted Payments to allow Borrower or Parent to pay) for the repurchase, retirement, redemption or other acquisition for value of Capital Stock of Borrower (or Parent); and[intentionally reserved]; and
(ix) on the Second Amendment Effective Date, or within three Business Day’s thereof, Borrower shall consummate the Permitted Redemption;
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in with respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect Borrower and the Restricted Subsidiaries may make repayments of intercompany Indebtedness solely to the extent such Indebtedness is permitted by Section 6.01(b), subject to the subordination and/or intercreditor provisions applicable to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01such Indebtedness;
(ii) as part the Borrower and the Restricted Subsidiaries may make Restricted Debt Payments in connection with a Permitted Refinancing of an Junior Financing, subject to the subordination provisions applicable high yield discount obligation catch-up paymentto any such Indebtedness;
(iii) payments the Borrower and the Restricted Subsidiaries may make Restricted Debt Payments in the form of regularly scheduled interest (including a conversion or exchange of any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due Junior Financing to Capital Stock (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereofDisqualified Capital Stock) of Borrower (or any of its direct or indirect parent companies);
(iv) Restricted Debt Payments so long as no Event of Default has occurred and is continuing or would immediately result therefrom, Borrower may make payments, using the Available Amounts then in an aggregate amount not to exceed the portion, if anyeffect, of Section 6.04(a)(x) at cash interest due under the Put Notes (but not accelerated payments); provided, that immediately before and after giving effect to such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect the Total Net Leverage Ratio computed on a Pro Forma Basis (including after giving effect to any Junior Debt that is permitted under Section 6.01;
(vi) such Restricted Debt Payments Payment and the incurrence of any Indebtedness in an aggregate amount not to exceed (Aconnection therewith) the portion, if any, shall be less than 4.754.00:1.00 as of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, end of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B)most recently ended Test Period; and
(Av) so long as no Event of Default has occurred and is continuing, the Restricted Debt Payments Subsidiaries may make payments in respect of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make “earn-outs” or other Indebtedness incurred by any Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) Subsidiary consisting of the definition deferred purchase price of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed property acquired in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such any Permitted Acquisition., so long as (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately before and after giving effect to such Restricted Debt Payment the Total Net Leverage Ratio calculated on a Pro Forma Basis as of the end of the most recently ended Test Period is less than 4.00:1.00, and satisfaction of such test shall be evidenced by a certificate from an Authorized Officer of Borrower demonstrating such satisfaction calculated in reasonable detail.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of (a) dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) an amount not greater than the amount necessary to enable maintain the Borrower’s status as a REIT and to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to maintain its REIT Status Sections 857(b) and 4981 of the Code) (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s status as a REIT Statusand to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to Sections 857(b) and 4981 of the Code) and (y) 100.0except during a Scheduled Wind-Down Period, 100% of estimated Core Operating Earnings of the Borrower and its Subsidiaries, (determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, basis) for the full fiscal quarter in which the applicable Restricted Payment dividend is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 $ 15,000,000 and 0.180.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) Except during a Scheduled Wind-Down Period or otherwise permitted in this Section 6.04(a), the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or and (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections Section 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 140,000,000 and 2.53.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.02(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination, in each case so long as no Event of Default under Section 7.01(a), (f) or (q) exists;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay not, nor shall it permit any of its Restricted Subsidiaries through any manner or makemeans or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payment, Restricted Debt Payment or sell any Disqualified Capital Stock except that:
(ia) the Borrower may make with respect to Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause Payments:
(i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any each Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to Borrower, and other Restricted Subsidiaries of Borrower (i) redeemand, repurchasein the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, retire or otherwise acquire to Borrower and any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any other Restricted Subsidiary in exchange for, or out and to each other owner of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital Restricted Subsidiary based on their relative ownership interests of the Borrower and/or any Restricted Subsidiary in respect relevant class of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiiiii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock (including Disqualified Capital Stock permitted by Section 6.01) of such Person (and, in the case of such a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to Borrower and any other Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests of the Borrower.relevant class of Capital Stock);
(iii) Borrower and its Restricted Subsidiaries may make Permitted Tax Payments;
(iv) Borrower may make Restricted Payments to Parent to the extent necessary to permit Parent entity to pay franchise taxes and other fees required to maintain its organizational existence that are actually incurred by Parent and are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Borrower and its Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by Borrower or any Restricted Subsidiary or (y) the applicable payment is treated by Borrower or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.07);
(v) so long as no Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Borrower held by any current or former officer, director, employee or consultant of Borrower or any of its Restricted Subsidiaries, or his or her estate, spouse, former spouse, or family member (or for the payment of principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $3,450,000 in any Fiscal Year;
(vi) on the Closing Date, Borrower and the Restricted Subsidiaries may consummate the Recapitalization and the Transactions;
(vii) Borrower may make Restricted Payments to effect the payments contemplated by Section 6.12(h);
(viii) Borrower may make Permitted Dividends; and
(ix) so long as (i) no Event of Default shall have occurred and be continuing or would immediately result therefrom and (ii) the Total Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith) does not exceed 4.00:1.00 for the most recently ended Test Period, the Borrower may pay (and the Restricted Subsidiaries may make Restricted Payments to allow Borrower or Parent to pay) for the repurchase, retirement, redemption or other acquisition for value of Capital Stock of Borrower (or Parent);
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in with respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect Borrower and the Restricted Subsidiaries may make repayments of intercompany Indebtedness solely to the extent such Indebtedness is permitted by Section 6.01(b), subject to the subordination and/or intercreditor provisions applicable to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01such Indebtedness;
(ii) as part the Borrower and the Restricted Subsidiaries may make Restricted Debt Payments in connection with a Permitted Refinancing of an Junior Financing, subject to the subordination provisions applicable high yield discount obligation catch-up paymentto any such Indebtedness;
(iii) payments the Borrower and the Restricted Subsidiaries may make Restricted Debt Payments in the form of regularly scheduled interest (including a conversion or exchange of any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due Junior Financing to Capital Stock (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereofDisqualified Capital Stock) of Borrower (or any of its direct or indirect parent companies);
(iv) Restricted Debt Payments so long as no Event of Default has occurred and is continuing or would immediately result therefrom, Borrower may make payments, using the Available Amounts then in an aggregate amount not to exceed the portion, if anyeffect, of Section 6.04(a)(x) at cash interest due under the Put Notes (but not accelerated payments); provided, that immediately after giving effect to such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect the Total Net Leverage Ratio computed on a Pro Forma Basis (including after giving effect to any Junior Debt that is permitted under Section 6.01;
(vi) such Restricted Debt Payments Payment and the incurrence of any Indebtedness in an aggregate amount not to exceed (Aconnection therewith) the portion, if any, shall be less than 4.75:1.00 as of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, end of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B)most recently ended Test Period; and
(Av) so long as no Event of Default has occurred and is continuing, the Restricted Debt Payments Subsidiaries may make payments in respect of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make “earn-outs” or other Indebtedness incurred by any Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) Subsidiary consisting of the definition deferred purchase price of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed property acquired in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such any Permitted Acquisition.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The No Borrower shall, nor shall not pay it permit any of its Restricted Subsidiaries through any manner or makemeans or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payment, Payment or any Restricted Debt Payment except that:
(ia) the Borrower may make with respect to Restricted Payments consisting of dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause Payments:
(i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any each Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to any Borrower, and other Restricted Subsidiaries of such Borrower (i) redeemand, repurchasein the case of a Restricted Payment NAI-1537241654v2 by a non-wholly-owned Restricted Subsidiary, retire or otherwise acquire to any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or and any other Restricted Subsidiary in exchange for, or out and to each other owner of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital Restricted Subsidiary based on their relative ownership interests of the Borrower and/or any Restricted Subsidiary in respect relevant class of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiiiii) the each Borrower and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
) of such Person (ii) as part and, in the case of an applicable high yield discount obligation catchsuch a Restricted Payment by a non-up paymentwholly-owned Restricted Subsidiary, to any Borrower and any other Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Capital Stock);
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) each Borrower and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof)its Restricted Subsidiaries may make Permitted Tax Payments;
(iv) each Borrower and its Restricted Debt Subsidiaries may make Restricted Payments to PRTH (or any direct or indirect parent of PRTH) (1) to the extent necessary to permit PRTH (or any direct or indirect parent of PRTH) to pay reasonable and customary general administrative costs and expenses and out-of-pocket legal, accounting and filing and other general corporate overhead costs of PRTH (or any direct or indirect parent of PRTH) (including, without limitation, reasonable and customary salaries and benefits of officers and employees of PRTH (or any direct or indirect parent of PRTH)) and to pay franchise taxes and other fees required to maintain its organizational existence of PRTH or any direct or indirect parent of PRTH actually incurred by PRTH or such direct or indirect parent of PRTH, which are reasonable and customary and incurred in an aggregate amount not the ordinary course of business and attributable to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, ownership or with proceeds of any issuance of, Qualified Capital Stock operations of the Borrowers and its Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent (x) of Cash received from the applicable Unrestricted Subsidiary for payment thereof by PRTH (or any direct or indirect parent of PRTH) or any Restricted Subsidiary or (y) the applicable payment is treated by a Borrower and/or or its applicable Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and is permitted under Section 6.07), (2) so long as no Default or Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom, to the extent necessary to permit PRTH (or any capital contribution in respect direct or indirect parent of Qualified Capital Stock PRTH) to pay directors’ fees, expenses and any reasonable and customary indemnification claims made by directors or officers of PRTH (or any direct or indirect parent of PRTH) attributable to the ownership or operations of the BorrowerBorrowers and its Restricted Subsidiaries, in each case, other than so long as PRTH (or any direct or indirect parent of PRTH) applies the amount of any such issuance toRestricted Payment for such purpose (but, or contribution byin each case, any Restricted Subsidiary and except to excluding, for the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to avoidance of doubt, the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock such amount, if any, that is attributable to the ownership or operations of any Subsidiary of PRTH (or any direct or indirect parent of PRTH) other than the Borrower Borrowers and/or their respective Subsidiaries) and (C3) to the extent constituting necessary to permit PRTH (or any direct or indirect parent of PRTH) to make payments permitted pursuant to Sections 6.12(h) and (i);
(v) the Borrowers and the Restricted Subsidiaries may make Restricted Payments in an unlimited amount, so long as (x) no Event of Default shall have occurred and be continuing or shall be caused thereby and (y) the Total Net Leverage Ratio (calculated on a Pro Forma Basis immediately before and immediately after giving effect to such Restricted Debt Payment, payment-in-kind interest with respect Payment and any Indebtedness incurred in connection therewith) shall not exceed 3.50:1.00 for the most recently ended Test Period (and satisfaction of such test shall be evidenced by a certificate from an Authorized Officer of the Borrower Representative demonstrating such satisfaction in reasonable detail reasonably satisfactory to any Junior Debt that is permitted under Section 6.01the Administrative Agent);
(vi) on the Closing Date, the Borrowers and the Restricted Debt Payments in an Subsidiaries may make any Restricted Payment necessary to consummate the Closing Date Refinancing and the Transactions;
(vii) on the DDTL Funding Date, the Borrowers and the Restricted Subsidiaries may make any Restricted Payment necessary to consummate the Target Refinancing and DDTL Transactions;
(viii) so long as (x) no Event of Default has occurred and is continuing or would immediately result therefrom and (y) the aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase exceed the amount available under clause sum of (a)(ixi) “Adjusted Three-Month Term SOFR” (as defined in the Preferred Stock Agreement Documents) (or benchmark of the definition of “Available Amount” corresponding import applicable to the extent so appliedPreferred Stock Facility) and plus (Bii) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.NAI-1537241654v2
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting to the extent necessary to enable any Parent Company:
(A) to pay general administrative costs and expenses, including corporate overhead, legal or similar costs and expenses and franchise Taxes, and similar fees, Taxes and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by any Employee Related Person of any Parent Company, in each case, to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other similar distributions on account of its Capital Stock declared by than the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (iand/or its Restricted Subsidiaries), the amount Borrower and/or its Restricted Subsidiaries;
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such dividends Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrower and/or its Restricted Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(D) to which pay insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its Restricted Payments are made pursuant Subsidiaries), the Borrower and/or its Restricted Subsidiaries;
(E) to this clause (i) shall not exceed the greater of pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, Investments or acquisitions (provided that the Borrower may make such distributions in the form whether or not consummated) and expenses and indemnities of cash any trustee, agent, arranger, underwriter or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) similar Person and (y) 100.0% after the consummation of estimated Core Earnings an initial public offering or an offering of public debt securities, Public Company Costs;
(F) to finance any Investment permitted under Section 6.05 (provided, that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired with or into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.05 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
(G) to pay customary salary, bonus, incentive, severance and other benefits (including payments pursuant to any profits, interest or equity plan) payable to any Employee Related Person of any Parent Company to the extent such salary, bonuses, incentive and other benefits are attributable and reasonably allocated to the operations of the Borrower and and/or its Restricted Subsidiaries, determined in good faith by each case, so long as such Parent Company applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) the Borrower may pay (or make Restricted Payments to enable any Parent Company to) repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company held by any Employee Related Person of any Parent Company, the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):its subsidiaries:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, exceed the greater of (i) of $5,000,000 and (ii) 5.0% of Consolidated Adjusted EBITDA in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to the next two succeeding Fiscal Years;
, it being understood that any such amount carried over to any Fiscal Year shall be deemed to be used (Bin such order as shall be determined by the Borrower) with in such Fiscal Year prior to the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock usage of the Borrower (to the extent amount set forth above otherwise available for such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Fiscal Year; or
(CB) with the net proceeds of any key-man life insurance policiespolicies received by the Borrower and its Subsidiaries during such Fiscal Year;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on at such date time that the Borrower elects to apply to this clause (iii)(Aiii), provided that, other than in the case of any such portion that is attributable to the Available Equity Contribution Amount, no Event of Default under Section 7.01(a), 7.01(f) and/or (Bor 7.01(g) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)exists or would result therefrom;
(iv) the Borrower may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of, or to any Parent Company to enable such Parent Company to make, (A) payments made or expected to be made in respect of required withholding or similar Taxes with respect to any Employee Related Person of any Parent Company, the BorrowerBorrower and/or its Restricted Subsidiaries and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise or vesting of stock options, restricted stock units or similar incentive interests;
(v) the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved]the Borrower or any Restricted Subsidiary may make additional Restricted Payments to the extent that such Restricted Payments are made with net proceeds received by the Borrower after the Closing Date from the issuance or sale of Qualified Capital Stock of the Borrower, Holdings or any other Parent Company or proceeds of an equity contribution that are not otherwise applied, initially made to the Borrower and have been contributed to the common equity of the Borrower (which such equity proceeds so utilized shall not also increase the Available Amount);
(viii) the Borrower may make Restricted Payments in an aggregate amount not to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of exceed the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Tax Distribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate the Transactions and any other transaction permitted by Section 6.05 (other than Sections 6.05(j) and 6.05(t)), Section 6.06 (other than Sections 6.06(jSection 6.06(g)) and (t)), Section 6.07 6.08 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q6.08(d));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f7.01(f) or (g7.01(g) existsexists or would result therefrom, minus any amounts then reallocated at the election of the Borrower (and without duplication) may make additional Restricted Payments in an aggregate amount not to exceed, taken together with any Restricted Debt Payments made in reliance on Section 6.01(u6.03(b)(iv)(B), Section 6.04(b)(ivthe greater of (i) or Section 6.06(q)(iof $15,000,000 and (ii) at such time 15.0% of determinationConsolidated Adjusted EBITDA for the most recently ended Test Period;
(xi) [reserved];
(xii) the Borrower may make additional Restricted Payments with so long as (A) no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom and (B) the Capital Stock ofTotal Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 3.50:1.00;
(xiii) Restricted Payments constituting any part of a Permitted Reorganization; provided that, (i) no Event of Default under Section 7.01(a), 7.01(f) or Indebtedness owed to 7.01(g) has occurred and is continuing and (ii) neither the Borrower or Loan Guaranties, taken as a Restricted Subsidiary bywhole, Unrestricted Subsidiaries nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)xiv) [reserved]; and
(xiiixv) to the Borrower may declare and make dividend extent constituting a Restricted Payment, distributions or payments or other Restricted Payments payable solely of Receivables Fees in the Capital Stock of the Borrowerconnection with a Receivables Facility.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Restricted Debt Payment made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) as part of an “applicable high yield discount obligation obligation” catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom, Restricted Debt Payments in an aggregate amount not to exceed exceed, taken together with any Restricted Payments made in reliance on Section 6.03(a)(B)(x), the portion, if any, greater of Section 6.04(a)(x) at such time $15,000,000 and 15.0% of determination that Consolidated Adjusted EBITDA for the Borrower elects to reallocate to this Section 6.04(b)(iv)most recently ended Test Period;
(Av) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest payments with respect to contingent acquisition consideration, including earn-outs, seller notes, holdbacks, purchase price adjustments and other deferred acquisition consideration in connection with any Junior Debt that is acquisition consummated on or prior to the Closing Date, any Investment permitted under Section 6.016.05 or Disposition permitted by Section 6.06;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) vi), provided that, other than in the portion, if any, case of any such portion that is attributable to the Available Excluded Equity Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(BAmount, no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom; and
(Avii) additional Restricted Debt Payments Payments, so long as (x) no Event of Junior Debt made with Declined Proceeds Default under Section 7.01(a), 7.01(f) or 7.01(g) exists or would result therefrom and (it being understood that any Declined Proceeds applied y) the Total Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 3.50:1.00. Notwithstanding anything to make Restricted Debt Payments the contrary set forth in reliance on this Section 6.04(b)(vii)(A6.03, no Loan Party shall make any Restricted Payment to any Subsidiary (other than another Loan Party) or Unrestricted Subsidiary in the form of Material Intellectual Property; provided that nothing in this sentence shall not increase the amount available under clause prohibit any non-exclusive (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition other than exclusive distribution or other permitted Investmentsimilar rights within a specified jurisdiction) license or sublicense of Material Intellectual Property to, which such assumption by permitted under Section 6.01or use of Material Intellectual Property by, and such Junior Debt was not issued any Subsidiary in contemplation the ordinary course of such Permitted Acquisitionbusiness.
Appears in 1 contract
Samples: Credit Agreement (Cano Health, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower and any Restricted Subsidiary may make Restricted Payments consisting to the extent necessary to enable any Parent Company:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar costs and expenses and franchise Taxes, and similar fees, Taxes and expenses, required to maintain the organizational existence of dividends such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business), plus any reasonable and customary indemnification claims made by any Employee Related Person of any Parent Company, in each case, to the extent attributable to the ownership or other similar distributions on account operations of its Capital Stock declared by any Parent Company of the Borrower in and/or its Restricted Subsidiaries (but excluding, for the avoidance of doubt, the portion of any Fiscal Quarter; provided such amount, if any, that such dividends is attributable to the ownership or similar distributions may be paid by operations of any subsidiary of any Parent Company other than the Borrower within 60 calendar days following and/or its Restricted Subsidiaries);
(B) [reserved];
(C) to pay audit and other accounting and reporting expenses of such Parent Company to the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i)extent attributable to any Parent Company, the amount Borrower and/or its Restricted Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such dividends expenses, if any, attributable to the ownership or distributions declared in operations of any Fiscal Quarter as subsidiary of any Parent Company other than the Borrower and/or its Restricted Subsidiaries);
(D) to which pay insurance premiums to the extent attributable to any Parent Company, the Borrower and/or its Restricted Payments are made pursuant Subsidiaries (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to this clause the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its Restricted Subsidiaries);
(iE) shall not exceed the greater of to pay (x) the amount necessary fees and expenses related to enable the Borrower to maintain its REIT Status debt or equity offerings, Investments or acquisitions (provided that the Borrower may make such distributions whether or not consummated) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar Person, in the form of cash or Cash Equivalents notwithstanding whether dividends each case solely in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) connection with transactions permitted hereunder and (y) 100.0% Public Company Costs;
(F) to finance any Investment permitted under Section 6.05 (provided, that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of estimated Core Earnings such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or, to the extent permitted under Section 6.05, one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired with or into the Borrower or, to the extent permitted under Section 6.05 one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.05 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
(G) to pay customary salary, bonus, incentive, severance and other benefits (including payments pursuant to any profits, interest or equity plan) payable to any Employee Related Person of any Parent Company to the extent such salary, bonuses, incentive and other benefits are attributable and reasonably allocated to the operations of the Borrower and and/or its Restricted Subsidiaries, determined in good faith by each case, so long as such Parent Company promptly applies the Borrower on a run-rate basis as amount of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable any such Restricted Payment is declaredfor such purpose;
(ii) so long as no Event of Default is continuing or would result therefrom, the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to enable any Parent Company to) repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company held by any Employee Related Person of any Parent Company, the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):its subsidiaries:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, exceed $10,000,000 in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to the next immediately succeeding Fiscal Years;
Year, it being understood that any such amount carried over to any Fiscal Year shall be deemed to be used (Bin such order as shall be determined by the Borrower) with in such Fiscal Year prior to the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock usage of the Borrower (to the extent amount set forth above otherwise available for such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Fiscal Year; or
(CB) with the net proceeds of any key-man life insurance policiespolicies received by the Borrower and its Subsidiaries during such Fiscal Year;
(iii) the Borrower may make dividends and distributions paid by any restricted subsidiray to a Loan Party (other than Holdings) or any other Restricted Payments in an amount not Subsidiary ratably to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B)its equityholders;
(iv) the Borrower or any Restricted Subsidiary may make Restricted Payments consisting of (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock of such Parent Company and (ii) consisting of, or to any Parent Company to enable such Parent Company to make, (A) payments made or expected to be made in respect of required withholding or similar Taxes with respect to any Employee Related Person of any Parent Company, the BorrowerBorrower and/or its Restricted Subsidiaries and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
(v) the Borrower or any Restricted Subsidiary may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, of such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, for Capital StockStock as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved]the Borrower or any Restricted Subsidiary may make additional Restricted Payments to the extent that such Restricted Payments are made with and within 30 days following the receipt of net proceeds received by the Borrower after the Closing Date from the issuance or sale of Qualified Capital Stock of the Borrower, Holdings or any other Parent Company or proceeds of an equity contribution that are not otherwise applied (in each case, other than a Cure Amount), initially made to the Borrower and have been contributed to the common equity of the Borrower (which such equity proceeds so utilized shall not also increase the Available Amount);
(viii) [the Borrower or any Restricted Subsidiary may make Restricted Payments (A) in an aggregate amount not to exceed the Tax Distribution Amount and (iB) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) without duplication of the Borrower and/or preceding clause (A), distributions to finance any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale payments (other than any accelerated payments or payments calculated based on valuation assumptions without regard to actual tax savings, including any such payments arising from a change of control transaction, a contractual breach, or by election of a party to the Borrower and/or any Restricted Subsidiaryagreement) of, Qualified Capital Stock of the Borrower required to be made pursuant to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution AmountTax Receivable Agreement;]
(ix) to the extent constituting a Restricted Payment, the Borrower and any Restricted Subsidiary may consummate the Transactions and any other transaction permitted by Section 6.05 (other than Sections 6.05(j) and 6.05(t)), Section 6.06 (other than Sections 6.06(jSection 6.06(g)) and (t)), Section 6.07 6.08 (other than Section 6.07(g)6.08(d) and Section 6.09 (other than Sections 6.09(d), (j) and (q6.08(j));
(x) so long as no Event of Default exists or would result therefrom, the Borrower and any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount not to exceed the greater of exceed, $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination1,000,000;
(xi) [reserved];
(xii) [reserved];
(xiii) Restricted Payments constituting any part of a Permitted Reorganization; provided that, (i) no Event of Default has occurred and is continuing and (ii) neither the Loan Guaranties, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired, in each case, as certified by a Responsible Officer of the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries Administrative Agent;
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)xiv) [reserved]; and
(xiiixv) to the Borrower may declare and make dividend extent constituting a Restricted Payment, distributions or payments or other Restricted Payments payable solely of Receivables Fees in the Capital Stock of the Borrowerconnection with a Receivables Facility.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment payment on or in respect of principal of or interest on any Junior Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Restricted Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Restricted Debt Payment made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to by Section 6.01;
(ii) so long as no Event of Default is continuing or would result therefrom, as part of an “applicable high yield discount obligation obligation” catch-up payment;
(iii) payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt Indebtedness that are prohibited by the subordination provisions thereof);
(iv) so long as no Event of Default exists or would result therefrom, the Borrower may make additional Restricted Debt Payments (other than earnouts, seller notes and similar obligations) in an aggregate amount not to exceed the portionexceed, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv)$1,000,000;
(Av) so long as no Event of Default is continuing or would result therefrom, payments with respect to contingent acquisition consideration, including earn-outs, seller notes, holdbacks, purchase price adjustments and other deferred acquisition consideration in connection with any acquisition consummated on or prior to the Closing Date, any Investment permitted under Section 6.05 or Disposition permitted by Section 6.06; provided, that, in no event shall a Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution Payment be made in respect of Qualified Capital Stock of the Borrowerany earn-out, in each case, other than any such issuance to, seller note or contribution by, any Restricted Subsidiary and except similar obligation prior to the extent date on which such amount Obligation is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01contractually due;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B)[reserved]; and
(Avii) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition[reserved].
Appears in 1 contract
Samples: Credit Agreement (Cano Health, Inc.)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay DeclareOther than in connection with the 2024 SS&C International Reorganization Transactions, declare or make, directly or indirectly, any Restricted Payment, except that:
(ia) each Restricted Subsidiary of the Borrower Parent may make Restricted Payments consisting to any Person that owns an Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of dividends the type of Equity Interest in respect of which such Restricted Payment is being made;
(i) Restricted Payments may be made by any Restricted Subsidiary of the Parent to the Parent or to any other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal QuarterRestricted Subsidiary; provided that in the case of a Restricted Payment made by non-Wholly Owned Subsidiary, such dividends or similar distributions may Restricted Payment shall be paid made by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount Subsidiary to each direct parent company of such dividends Subsidiary on a pro rata basis (or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed on a more favorable basis from the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings perspective of the Borrower and its Subsidiaries, determined in good faith by Parent or any applicable Subsidiary thereof that is the Borrower direct parent company of such Subsidiary) based on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declaredtheir relative ownership interests;
(ii) (b) the Borrower Parent and eachits Restricted Subsidiary may declare and make dividend payments or other distributions payable solely inSubsidiaries may pay to for the repurchase, redeemredemption, retire retirement or otherwise acquire other acquisition or retire retirement for value the of Equity Interests (other than Disqualified Capital Stock Stock) of the Borrower or any Subsidiary held such Person;held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):Permitted Payee:
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 and 0.18% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;[reserved]; plus
(B) with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock Equity Interests of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount))Parent; orplus
(C) with the net proceeds of any key-man life insurance policies; plus
(D) with the amount of any cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of Equity Interests of the Parent pursuant to any compensation arrangement, including any deferred compensation plan;
(iii) the Borrower Parent and its Restricted Subsidiaries may make additional Restricted Payments in an amount not to exceed (A) exceed, so long as no Event of Default exists or results therefrom, the portion, if any, of the Available Amount on such date that the Borrower Parent elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(Biii);
(iv) the Borrower Parent and its Restricted Subsidiaries may (A) make Restricted Payments consisting of Cash cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable forfor Equity Interests of the Parent, or otherwise based onin connection with dividends, Capital Stock share splits, reverse share splits (or any combination thereof) and mergers, consolidations, amalgamations or other business combinations, and acquisitions and other Investments permitted hereunder, (B) honor any conversion request by a holder of convertible Indebtedness, make any cash payments in lieu of fractional shares in connection with any conversion and make payments on convertible Indebtedness in accordance with its terms and (C) make Restricted Payments consisting of (x) payments made or expected to be made in respect of withholding or similar Taxes payable by any Permitted Payee and/or (y) repurchases of Equity Interests in consideration of the Borrowerpayments described in sub clause (x) above, including demand repurchases in connection with the exercise of stock options and the issuance of restricted stock units or similar stock based awards;
(v) the Borrower Parent and its Restricted Subsidiaries may repurchase Capital Stock repurchase, redeem, acquire or retire Equity Interests upon (or make provisions for withholdings in connection with), the exercise, settlement, grant or vesting exercise of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock for Equity Interests if such Capital Stock represents Equity Interests represent all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stockfor Equity Interests as part of a “cashless” exercise;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 1 contract
Samples: Incremental Joinder & First Amendment to Credit Agreement (SS&C Technologies Holdings Inc)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iii) the Borrower may make Restricted Payments consisting of dividends pursuant to and in accordance with stock option plans or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends benefit plans for management or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) the amount necessary to enable the Borrower to maintain its REIT Status (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s REIT Status) and (y) 100.0% of estimated Core Earnings employees of the Borrower and its Subsidiaries, determined in good faith by (iv) Subsidiaries may make any Restricted Payment to the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared;
or another Subsidiary that constitutes an Investment permitted under Section 6.04 and (iiv) the Borrower may pay declare and make Restricted Payments (x) in an unlimited amount so long as at the time of such making or declaration (1) no Event of Default shall be then continuing and (2) after giving effect to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a such Restricted Payment, amounts paid the Borrower shall be in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock pro forma compliance with Section 6.09 as of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) last day of the Borrower most recently-ended fiscal four fiscal quarter period for which financial statements were delivered pursuant to Section 5.01(a) or (b), as applicable; provided that, for the purposes of this clause (v), pro forma compliance with Section 6.09(a) shall be determined without giving effect to any Subsidiary Specified Material Investment Step-Up, or (or of the Manager or any Affiliate thereof)y) otherwise in an annual aggregate amount for all such transactions not to exceed, in any Fiscal Year, exceed the greater of $25,000,000 250,000,000 and 0.1810% of Consolidated Total Assets (determined as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in fiscal quarter preceding the record date of such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment for which financial statements have been (or were required to be) delivered pursuant to this clause Section 5.01(a) or (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)b), Section 6.07 (other than Section 6.07(g)as applicable) and Section 6.09 (other than Sections 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 and 2.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as at the time of such making or declaration no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts shall be then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries)continuing; and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any Prepayment payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior DebtRestricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to Restricted Indebtedness (any of the scheduled maturity date thereof (collectivelyforegoing, a “Restricted Debt PaymentsPayment”), except:
(i) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01; it being understood and agreed that no such principal payments shall be permitted with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Subordinated Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to this clause (i);
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiii) the Borrower may make Restricted Debt Payments, in an unlimited amount so long as part at the time of an applicable high yield discount obligation catchsuch making or declaration (1) no Event of Default shall be then continuing and (2) after giving effect to such Restricted Payment, the Borrower shall be in pro forma compliance with Section 6.09 as of the last day of the most recently-up payment;
ended fiscal four fiscal quarter period for which financial statements were (or were required to be) delivered pursuant to Section 5.01(a) or (b), as applicable; provided that, for the purposes of this clause (iii), pro forma compliance with Section 6.09(a) payments of regularly scheduled interest (including shall be determined without giving effect to any penalty interestSpecified Material Investment Step-Up, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);and
(iv) the Borrower may make other Restricted Debt Payments in an annual aggregate amount for all such transactions not to exceed the portion, if any, greater of Section 6.04(a)(x) at such time $250,000,000 and 10% of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
Total Assets (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock determined as of the Borrower and/or any capital contribution in respect of Qualified Capital Stock last day of the Borrower, in each case, other than any most recently ended fiscal quarter preceding the record date of such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment for which financial statements have been (or were required to be) delivered pursuant to Section 5.01(a) or (b), as applicable) so long as at the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation time of such Permitted Acquisitionmaking or declaration no Event of Default shall be then continuing.
Appears in 1 contract
Samples: Credit Agreement (Masimo Corp)
Restricted Payments; Restricted Debt Payments. (a) The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i) the Borrower may make Restricted Payments consisting of (a) dividends or other similar distributions on account of its Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within 60 calendar days following the date that such dividend or other distribution is declared by the Borrower; provided, further, that, solely for purposes of this clause (i), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this clause (i) shall not exceed the greater of (x) an amount not greater than the amount necessary to enable maintain the Borrower’s status as a REIT and to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to maintain its REIT Status Sections 857(b) and 4981 of the Code) (provided that the Borrower may make such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain the Borrower’s status as a REIT Statusand to avoid payment or imposition of any entity-level tax on the Borrower (including pursuant to Sections 857(b) and 4981 of the Code) and (y) 100.0except during a Scheduled Wind-Down Period, 100% of estimated Core Operating Earnings of the Borrower and its Subsidiaries, (determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted Payment, basis) for the full fiscal quarter in which the applicable Restricted Payment dividend is declared;
(ii) the Borrower may pay to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof):
(A) with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Borrower or any Subsidiary held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of the Borrower or any Subsidiary (or of the Manager or any Affiliate thereof)) in an amount not to exceed, in any Fiscal Year, the greater of $25,000,000 15,000,000 and 0.180.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(B) with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary (other than any such proceeds or contribution that forms part of any Available Excluded Contribution Amount, Cure Amount or outstanding Contribution Indebtedness Amount or to the extent such proceeds or contribution has increased the Available Amount and is applied to incur an applicable transaction under the Available Amount)); or
(C) with the net proceeds of any key-man life insurance policies;
(iii) Except during a Scheduled Wind-Down Period oras otherwise permitted in this Section 6.04(a), the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or and (B) the portion, if any, of the unutilized Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
(iv) the Borrower may make Restricted Payments consisting of Cash payments in lieu of the issuance of fractional shares in connection with the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock of the Borrower;
(v) the Borrower may repurchase Capital Stock upon the exercise, settlement, grant or vesting of warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for, or otherwise based on, Capital Stock;
(vi) [reserved];
(vii) [reserved];
(viii) the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; provided that any amount applied to make a Restricted Payment pursuant to this clause (viii) shall not be applied or used as any Cure Amount or any Contribution Indebtedness Amount or to increase the Available Amount or the Available Excluded Contribution Amount;
(ix) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections Section 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections Section 6.09(d), (j) and (q));
(x) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $350,000,000 140,000,000 and 2.53.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, so long as no Event of Default under Section 7.01(a), (f) or (g) exists, minus any amounts then reallocated at the election of the Borrower (and without duplication) to Section 6.01(u), Section 6.02(u), Section 6.04(b)(iv) or Section 6.06(q)(i) at such time of determination, in each case so long as no Event of Default under Section 7.01(a), (f) or (q) exists;
(xi) [reserved];
(xii) the Borrower may make Restricted Payments with the Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents contributed by the Borrower and its Restricted Subsidiaries); and
(xiii) the Borrower may declare and make dividend payments or other Restricted Payments payable solely in the Capital Stock of the Borrower.
(b) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any Prepayment in respect of principal of any Junior Debt, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Junior Debt more than one year prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of Junior Debt made by exchange for, or out of the proceeds of, either (x) Refinancing Indebtedness or (y) any other Indebtedness or Disqualified Capital Stock permitted pursuant to Section 6.01;
(ii) as part of an applicable high yield discount obligation catch-up payment;
(iii) payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Debt that are prohibited by the subordination provisions thereof);
(iv) Restricted Debt Payments in an aggregate amount not to exceed the portion, if any, of Section 6.04(a)(x) at such time of determination that the Borrower elects to reallocate to this Section 6.04(b)(iv);
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, in each case, other than any such issuance to, or contribution by, any Restricted Subsidiary and except to the extent such amount is applied as any Cure Amount or utilized to incur outstanding Indebtedness pursuant to the Contribution Indebtedness Amount or to make any Restricted Payment, Investment or Restricted Debt Payment pursuant to the Available Amount or the Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Debt into Qualified Capital Stock of the Borrower and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Junior Debt that is permitted under Section 6.01;
(vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B); and
(vii) (A) Restricted Debt Payments of Junior Debt made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(vii)(A) shall not increase the amount available under clause (a)(ix) of the definition of “Available Amount” to the extent so applied) and (B) Restricted Debt Payments of Junior Debt to the extent such Junior Debt was assumed in connection with a Permitted Acquisition or other permitted Investment, which such assumption by permitted under Section 6.01, and such Junior Debt was not issued in contemplation of such Permitted Acquisition.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)