Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; (c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto; (d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f); (e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof: (i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately; (ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries; (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; (iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and (v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; (g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO); (h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount; (i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions; (j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower; (k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and (l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 8 contracts
Samples: Credit Agreement (West Corp), Credit Agreement (West Corp), Credit Agreement (West Corp)
Restricted Payments. Declare None of the Covenant Parties shall, nor shall any Covenant Party permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower any Covenant Party, and to other Restricted Subsidiaries and of any Covenant Parties (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower any Covenant Party and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower any Covenant Party and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments as part of or in connection with the Transaction (including or the unwinding of any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately intercompany transaction put in place prior to giving effect to the Transactions) Closing Date or as part of or in connection with, or as a result of, their exercise of appraisal rights and with the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction);
(d) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date Xxxxxxx delivers an irrevocable written notice to the Administrative Agent stating that Restricted Payments will be made to fund cash interest payments required to be made by the Company (the “Company Restricted Payments Election”), such Restricted Payments may be made;
(e) to the extent constituting Restricted Payments, the Borrower any Covenant Party and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f) or 7.08(l);
(ef) repurchases of Equity Interests in the Borrower any Covenant Party or any Restricted Subsidiary of a Covenant Party deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to Covenant Parties may pay (or to make Restricted Payments to allow the Company or any other direct or indirect parent thereof of the Covenant Parties to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Covenant Party (or of the Borrower Company or any other such parent of such Covenant Party) by any future, present or former employee or director of such Covenant Party (or the Borrower Company or any other direct or indirect parent of such Covenant Party) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of such Covenant Party (or the Borrower Company or any other direct or indirect parent of such Covenant Party) or any of its Restricted Subsidiaries;
(h) the Covenant Parties may make Restricted Payments in an aggregate amount equal to (x) $250,000,000, plus, if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 7.00 to 1.00, (y) the portion, if any, of the Cumulative Credit on such date that Xxxxxxx elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of Xxxxxxx calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, howeverthat with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom;
(i) the Covenant Parties and the Restricted Subsidiaries may make Restricted Payments to the Company or any other direct or indirect parent of the Covenant Parties:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries;
(ii) the proceeds of which shall be used by such parent to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) to pay federal, foreign, state and local income taxes; provided that, for each fiscal year, the amount of such payments made in respect of such fiscal year shall not exceed the amount that the Company and the Restricted Subsidiaries would be required to pay in respect of federal, foreign, state and local income taxes if such entities were corporations paying taxes separately from any parent entity at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if any Covenant Party or Restricted Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that the aggregate a Restricted Payment in duplication of such amount of payments shall not be permitted to be made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOiii));
(hiv) so long as no Default shall have occurred and to finance any Investment that would be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings permitted to be made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant 7.02 if such parent were subject to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of such section; provided that (A) $75,000,000 (such amount to Restricted Payment shall be increased to $100,000,000 upon made substantially concurrently with the Total Leverage Ratio as closing of the last day of any Test Period being less than 5.0 to 1.0) such Investment and (B) such parent shall, immediately following the Cumulative Growth Amountclosing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Covenant Parties or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with the requirements of Section 6.11;
(iv) so long as the proceeds of which shall be used by such parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or to any merger or acquisition transaction permitted by this Agreement;
(vi) the proceeds of which shall be used to repurchase, redeem, retire or otherwise acquire the 7% preference shares of the Company in existence on the Closing Date (at a per share price of no Default shall have occurred and be continuing or would result therefrom, more than the Borrower may make additional Restricted Payments in an amount (together with the aggregate face amount of Investments made pursuant to Section 7.02(vsuch shares)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make any Restricted Payments with Payment of the proceeds of the issuance of Qualified Equity Interests of the BorrowerIndebtedness incurred to refinance Indebtedness outstanding pursuant to Section 7.03(b)(i) and to pay accrued and unpaid interest, premium, fee and expenses related thereto;
(k) if the Borrower shall become the Subsidiary of Holdingsafter a Qualified IPO, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice (i) any Restricted Payment to the Administrative Agent stating that Company or any other direct or indirect parent of the Borrower will make such dividends Covenant Parties to pay listing fees and distributions other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (the “ii) Restricted Payments Interest Expense Election”) in respect of up to 6% per annum of the Indebtedness specified in net proceeds received by (or contributed to) the Covenant Parties and their Restricted Subsidiaries from such notice only so long as no Default shall have occurred and be continuing or would result therefrom; andQualified IPO;
(l) the declaration and payment non-cash forgiveness, cancellation, termination or disposition of dividends and distributions on the Equity Interests Transactions Intercompany Obligations; and
(m) any Restricted Payment caused by granting the Ratable Security of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)EMTNs.
Appears in 6 contracts
Samples: Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, Holdco and any other Restricted Subsidiary and Person that owns an Equity Interest in such Subsidiary, ratably according to each other owner their respective holdings of the type of Equity Interests Interest in respect of which such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsPayment is being made;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the Transaction (including any amounts to be paid under, proceeds received from the substantially concurrent issue of new shares of its common stock or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of other common Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;Interests; and
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used declare or pay cash dividends to pay the Holdco in amounts sufficient to allow Holdco (x) to discharge any Federal, state and local income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for arising from the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
, and (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereofy) to pay franchise taxes corporate overhead and other fees, taxes and administrative expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed reasonably allocable to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of and its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause and (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(hii) so long as no Event of Default shall have occurred and be continuing exists under Section 7.10(a) or would result therefromclause (a), the Borrower may make additional Restricted Payments in an aggregate amount(f) or (g) of Section 8.01, together with the aggregate amount of before or after giving effect thereto, (ix) prepaymentsdeclare or pay cash dividends to Holdco, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (iiy) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h)purchase, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing redeem or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified otherwise acquire Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted issued by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)it.
Appears in 6 contracts
Samples: Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group)
Restricted Payments. Declare The Loan Parties shall not, and shall not permit any Unregulated Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, except:
except that (a) the Borrower may (i) each Restricted Subsidiary may declare and make Restricted Payments to the Borrower and to any dividend payment or other Restricted Subsidiaries and distribution payable in its common stock, (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) effectuate cashless repurchases of Equity Interests in the Borrower or any Restricted Subsidiary its capital stock deemed to occur upon the exercise of options, warrants or similar rights in such capital stock options or warrants if such Equity Interests represent a portion the payment by the Borrower of employee tax liabilities arising from the exercise price issuance of such options capital stock pursuant to stock option or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct other equity-based incentive or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred benefit plans in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
; (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of cash payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum issuance of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized fractional shares in connection with the Transactions;
exercise of warrants, options or other securities convertible into or exchangeable for equity interests of the Borrower; (jiv) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds received from the substantially concurrent issue of the issuance of Qualified Equity Interests of the Borrower;
new common stock; and (kv) if the Borrower shall become the Subsidiary of Holdings, make any other Restricted Payment so long as no Event of Default or Potential Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be is continuing or would result therefrom; and
and (lb) any Subsidiary of the declaration Borrower may declare and payment make any Restricted Payment (1) to the holders of dividends and distributions the equity interests of such Subsidiary, ratably according to such equity holder’s percentage ownership of the class of equity interest in respect of which such Restricted Payment is being made or (2) to any Loan Party, whether or not on a ratable basis. In addition, each Loan Party shall not permit any of its Regulated Subsidiaries to be subject to contractual limitations on the Equity Interests ability of any Receivables Management such Regulated Subsidiary to holders of minority interests substantially consistent with past practice make Restricted Payments to the extent such holder (or its affiliates) participates Loan Party, other than restrictions contained in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management senior Indebtedness incurred by such Regulated Subsidiary).
Appears in 5 contracts
Samples: Credit Agreement (New Jersey Resources Corp), Term Loan Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Restricted Payments. Declare or makeNeither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, contingent or potential) with respect theretopurchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $35,000,000 in any calendar year (which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $60,000,000 in any calendar year or $120,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, officers, members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the greater of (i) $230,000,000 and Holdings (ii) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, any costs, expenses and liabilities incurred by the Company in connection with any litigation or arbitration attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iviii) if for any taxable period in which the Borrower and/or any of its Subsidiaries is a Holdings Election Event shall occurmember of a consolidated, combined or similar foreign, federal, state or local income or similar tax group that includes the Borrower and/or its Subsidiaries (a “Tax Group”) and whose common parent is a direct or indirect parent of Borrower, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) the extent such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets income or Equity Interests) to be contributed similar Taxes are attributable to the income of the Borrower or and/or its Restricted Subsidiaries and, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its applicable Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (2) the merger (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in Section 7.04) respect of the Person formed relevant foreign, federal, state or acquired into local income or similar Taxes for such fiscal year) had the Borrower or and its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (including its Unrestricted Subsidiaries to the extent required by the Collateral and Guarantee Requirementdescribed above); and
, as applicable, (vA) paid such Taxes separately from any such parent company or (B) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, were the Borrower a taxpayer and parent of a consolidated group and had paid such taxes for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent Unrestricted Subsidiaries to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOextent described above);
(hiv) so long as no Default shall have occurred and be continuing for any taxable period (or would result therefrom, portion thereof) in which the Borrower may make additional Restricted Payments is a partnership or disregarded entity for U.S. federal income tax purposes, payments to the owner or owners of equity of the Borrower in an aggregate amountamount equal to each of the owner’s proportionate share of the Tax Amount. The “Tax Amount” is the Highest Owner Tax Amount divided by such owner’s proportionate economic ownership interest the Borrower. The “Highest Owner Tax Amount” is, together with respect to the aggregate amount applicable owner receiving the greatest proportionate allocation of estimated net taxable income attributable to the Borrower in the applicable tax period (ior portion thereof) prepayments, redemptions, purchases, defeasances and other payments in respect to which such payment relates (as a result of Junior Financings made pursuant to the application of Section 7.13(a)(iv704(c) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hthe Code or otherwise), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as aggregate taxable income of the last day of Borrower allocated to such owner (calculated by excluding the tax consequences resulting from any Test Period being less than 5.0 to 1.0Code Section 743(b) and adjustment) in such applicable taxable period (or portion thereof), multiplied by (B) the Cumulative Growth Amounthighest combined marginal federal, state and/or local income tax rate applicable to an individual residing in California or New York, New York (whichever is higher for the relevant period);
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 5 contracts
Samples: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(f)) or Section 7.04;
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it held by any future, present or former employee employee, director, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management or director equity plan, employee employee, management or director stock option plan or any other employee employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, officer or director consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any fiscal year; provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrower or any of its Subsidiaries from members of management of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount Borrower’s Restricted Subsidiaries in connection with a repurchase of payments made pursuant to this clause (f) does not exceed in Equity Interests of any fiscal year of the Borrower $15,000,000 will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(which shall increase g) netting of shares under stock option plans to $20,000,000 subsequent settle option price payments owed to employees and officers of the consummation Borrower with respect thereto, and netting of a Qualifying IPOshares to settle such employees’ and officers’ federal, with unused amounts in any calendar year being carried over state and income tax liabilities (if any) related to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)restricted stock units and similar stock based awards thereunder;
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) the Borrower and each Restricted Subsidiary may declare and make dividend payments to or other distributions payable in Qualified Equity Interests of such Person;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that (x) at the time of any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefromtherefrom and (y) in the case of any such Restricted Payment in an amount in excess of $15,000,000, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(l) the declaration and payment by the Borrower of dividends and distributions on the Equity Interests common stock or common equity interests of the Borrower in an amount not to exceed in any fiscal year the greater of (x) the aggregate amount of dividends on the common stock or common equity interests of the Borrower paid by the Borrower in the prior fiscal year and (y) at the time of any Receivables Management Subsidiary such declaration by the Borrower, an amount equal to holders 40% of minority interests substantially consistent with past practice to the extent Consolidated Net Income of the Borrower for the Test Period most recently ended; provided that no Default or Event of Default shall have occurred and be continuing at the time of the declaration of any such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payment.
Appears in 4 contracts
Samples: Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co)
Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, the Borrower and any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments in connection with the Transaction made (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactionsi) in connection with, respect of working capital adjustments or as a result of, their exercise of appraisal rights purchase price adjustments pursuant to any Permitted Acquisition or other permitted Investments and the settlement (ii) in order to satisfy indemnity and other similar obligations in respect of any claims or actions (whether actual, contingent or potential) with respect theretoPermitted Acquisitions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by by, and make any distributions pursuant to, any provision of Section 7.04 or 7.08 6.17, 7.02 (other than Section 7.08(f7.02(e) and 7.02(m)), 7.04 (other than 7.04(f)) or 7.05 (other than 7.05(e)(iv) and 7.05(g));
(e) repurchases of Equity Interests in the Borrower Holdings or any direct or indirect parent thereof, Holdings, or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may (i) pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) allow the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (Borrower or any direct or indirect parent thereofthereof to pay) attributable to Holdingsfor the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
or (ii) make Restricted Payments in the proceeds form of which shall be used by Holdings (distributions to allow the Borrower or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this Section 7.06(f) shall not exceed the greater of $7,800,000 and 12% of Consolidated EBITDA (determined on a Pro Forma Basis in accordance with Section 1.09) in any calendar year (which shall increase to the greater of $17,500,000 and 27% of Consolidated EBITDA (determined on a Pro Forma Basis in accordance with Section 1.09) in any calendar year following a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of the greater of $11,250,000 and 17% of Consolidated EBITDA (determined on a Pro Forma Basis in accordance with Section 1.09) (which shall increase to the greater of $17,500,000 and 27% of Consolidated EBITDA (determined on a Pro Forma Basis in accordance with Section 1.09) in any calendar year following a Qualified IPO) carried over in any calendar year); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; provided that such proceeds are used solely to repurchase Equity Interests held by the employee (or any of his or her successors or assigns, including any family trusts) that is the subject of such key man life insurance; provided, further, that cancellation of Indebtedness owing to the Borrower from members of management of (i) the Borrower, (ii) any of the Borrower’s direct or indirect parent companies or (iii) any of Holdings’ Restricted Subsidiaries, in each case in connection with the repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement to the extent such Indebtedness was incurred to finance the purchase of such Equity Interests by such members of management and the cash proceeds of such Indebtedness were paid to a Loan Party;
(g) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of $16,250,000 and 25% of Consolidated EBITDA (determined on a Pro Forma Basis in accordance with Section 1.09); provided that no Default or Event of Default under Section 8.01(a) or 8.01(f) has occurred and is continuing or would result therefrom;
(h) the Borrower may make Restricted Payments to Holdings or any direct or indirect parent of Holdings:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any indemnification claims made by directors or officers of such parent in each case attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses expenses, in each case, required to maintain its (or any of its direct or indirect parents’) corporate or limited liability company existence;
(iii) for any taxable period in which the Borrower and Holdings each is treated as a pass-through or disregarded entity for U.S. and/or applicable state, local or foreign income tax purposes, so that Holdings or any direct or indirect parent of Holdings may make the tax distributions required by Holdings’ or such parent’s Amended and Restated Limited Liability Company Agreement (as such agreement was in effect on the Closing Date), excluding in each case any tax or required tax distribution determined by reference to the income or activities of any Person other than the Subsidiaries of Holdings;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if Holdings or such parent were subject to such Sections as a Loan Party; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries that are Loan Parties or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries (with the Borrower or the applicable Restricted Subsidiary that is a Loan Party being the surviving or continuing entity) in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied withand (C) such contribution shall constitute an Investment by the Borrower or the applicable Restricted Subsidiaries, within as the time periods specified therein (case may be, at the date of such contribution or merger, as applicable, in an amount equal to the extent required by the Collateral and Guarantee Requirement); andamount of such Restricted Payment;
(v) if the proceeds of which (A) shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 6.17(c), (e) and (i) (but only to the extent such payments have not been and are not expected to be made by Holdings or a Holdings Election Event shall occur, Restricted Subsidiary);
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary and reasonable fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent of Holdings); and
(vii) for any taxable period in which the Borrower and, if applicable, any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone consolidated, combined or similar income tax group;
(gi) payments made or expected to be made by Holdings, the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) additional Restricted Payments in an aggregate amount per annum not to exceed an amount equal to 6.0% the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO;
(k) Holdings, the Borrower or any of its the Restricted Subsidiaries pursuant to may pay cash in lieu of fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or any agreement Permitted Acquisition;
(including any stock subscription or shareholder agreementl) with any employee or director Restricted Payments (A) made using the Cumulative Credit at such time so long as (x) in respect of Restricted Payments made using clauses (a) and (b) of the Borrower Cumulative Credit only, no Default or any Event of its Subsidiaries; providedDefault under Section 8.01(a) or 8.01(f) exists or would result from the making of such Restricted Payment and (y) in respect of Restricted Payments made using clause (b) of the Cumulative Credit only, howeverHoldings would be permitted to incur at least $1.00 of additional Indebtedness pursuant Section 7.03(v) or (B) made using the portion, if any, of the Available Excluded Contribution Amount on such date that the aggregate amount of payments made pursuant Borrower elects to apply to this clause (fl)(B) does not exceed in any fiscal year to the extent such Restricted Payment is made within 12 months of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation date of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) designation of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);such Available Excluded Contribution Amount; and
(hm) so long as no Default or Event of Default under Section 8.01(a) or 8.01(f) shall have occurred and be continuing or would otherwise result therefrom, the Borrower may make additional other Restricted Payments in an aggregate amount, together with such that the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis would be less than or equal to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of 3.25:1.00. All Restricted Payments permitted made by this clause (h), not a non-wholly owned Subsidiary shall be made on a pro rata basis or on a basis even more favorable to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Subsidiaries.
Appears in 3 contracts
Samples: Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) Restricted Payments to Holdings, the Borrower or any other Restricted Subsidiary;
(i) each Restricted Subsidiary Holdings may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests in exchange for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent capital contributions or issuances of new Equity Interests, provided that any terms and provisions material to the Borrower and interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to other Restricted Subsidiaries the Lenders as those contained in the Equity Interests redeemed thereby and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary Holdings may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonHoldings;
(c) Holdings may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, 1) no Event of Default is continuing or contemplated by, the Transaction Agreementwould result therefrom and (2) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the Transactions) in connection with, Senior Secured Net Leverage Ratio calculated on a Pro Forma Basis is less than or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoequal to 3.00:1.00;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)) or Section 7.07 (other than Section 7.07(j));
(e) repurchases of Equity Interests in the Borrower ordinary course of business of Holdings (or any Restricted Subsidiary direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) Holdings may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings and its Restricted Subsidiaries;
(g) Holdings may make Restricted Payments in an aggregate amount not to exceed the Available Amount; provided that with respect to Restricted Payments made in reliance on the Growth Amount, (x) no Event of Default would result therefrom and (y) the Total Net Leverage Ratio shall not exceed the Total Net Leverage Ratio as of the Closing Date on a Pro Forma Basis;
(h) Holdings may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrower or any Restricted Subsidiary; provided that such payments shall not exceed $5,000,000 in any calendar year (or, after a Qualifying IPO, the greater of (x) $8,000,000 and (y) 15.0% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(h) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000 in any calendar year (or, after the Qualifying IPO, the greater of (x) $14,000,000 and (y) 25.0% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period); provided further that, cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings and, to the extent contributed to the capital of Holdings (other than through the issuance of Disqualified Equity Interests), Equity Interests of any parent entity of Holdings, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or any parent entity thereof that occurred after the Closing Date, in each case to the extent not otherwise applied under this Agreement or constituting a Cure Amount; plus
(ii) the cash proceeds of key man life insurance policies received by Holdings and its Restricted Subsidiaries after the Closing Date; less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this proviso;
(i) Holdings may make additional Restricted Payments in an amount not to exceed $1,000,000; provided that no Specified Event of Default has occurred and is continuing or would result therefrom;
(j) Holdings may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction similar Tax liability of Holdings (or any direct or indirect parent thereof) such parent’s income Tax that is attributable to the income of Holdings, the Borrower or its their respective Subsidiaries; provided that Holdings, the Borrower, and their applicable Subsidiaries determined as if are members of a consolidated, combined, or unitary group for U.S. federal tax purposes of which the direct or indirect parent of Holdings is the common parent; provided further that no such payments shall exceed the Tax liability that would have been imposed on Holdings, the Borrower and/or the applicable Subsidiaries had such entities filed a consolidated, combined, unitary or similar Tax return where Holdings was the parent entity of such group and the only subsidiaries of Holdings were Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) [reserved], (y) fees and expenses (other than such owed to Affiliates) (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in Holdings to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(j), ) which are in each case reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of Holdings attributable to the direct or indirect ownership or operations of the Borrower Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by Holdings or any Restricted Subsidiary and permitted to be paid by Holdings or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise Taxes, and other feesfees and expenses, taxes and expenses in each case required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a which shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Holdings Election Event shall occuror any other direct or indirect parent company of Holdings, including Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries;
(v) to finance any Investment made by such direct or indirect parent that, if made by Holdings, would be permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower Holdings or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)6.13; andand/or
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings to (or any direct or indirect parent thereofA) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement and (B) without duplication, to pay Public Company Costs;
(gk) Holdings may make Restricted Payments in connection with the Transactions (other than clause (c) of the definition thereof);
(l) [reserved];
(m) Restricted Payments in an amount equal to the aggregate amount of cash contributions made after the Closing Date to Holdings and contributed to the Borrower may pay in exchange for the repurchase, retirement or other acquisition or retirement for value of Qualified Equity Interests of Holdings, except to the Borrower extent utilized in connection with any other transaction permitted by Section 7.02 or Section 7.08, and except to the extent such amount increases the Available Amount or constitutes a Cure Amount;
(n) [reserved];
(o) [reserved];
(p) the declaration and payment of dividends on Disqualified Equity Interests incurred in accordance with Section 7.03;
(q) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred exercise of stock options or warrants and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds vesting of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred restricted stock and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromrestricted stock units; and
(lr) the declaration distributions or payments of Securitization Fees, sales contributions and payment other transfers of dividends Securitization Assets or Receivables Assets and distributions on the Equity Interests purchases of any Securitization Assets or Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Permitted Receivables Management Subsidiary)Financing.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings, the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date the Company delivers an irrevocable written notice to the Administrative Agent stating that the Company will make Restricted Payments in connection with the Transaction (including any amounts to Holdings that are used by Holdings solely to fund cash interest payments required to be paid under, or contemplated bymade by Holdings (the “Holdings Restricted Payments Election”), the Transaction Agreement) and the fees and expenses related thereto owed Company may make such Restricted Payments to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoHoldings;
(d) Restricted Payments made on the Closing Date to consummate the Transaction;
(e) to the extent constituting Restricted Payments, Holdings, the Borrower Company and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(ef) repurchases of Equity Interests in Holdings, the Borrower Company or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings (or the Company after a Qualifying IPO of the Company) may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such parent of Holdings or of the Company after a Qualifying IPO of the Company) by any future, present or former employee or director of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Holdings or any of its Subsidiaries;
(h) the Borrower Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofsuch parent) attributable to Holdings, the Borrower Company or its Subsidiaries determined as if the Borrower Company and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereofof Holdings to pay) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower Company and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a the proceeds of which shall be used by Holdings Election Event shall occur, to make Restricted Payments permitted by Section 7.06(g);
(v) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)6.11; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Company may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii2) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) $75,000,000 200,000,000, (such ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to be increased to $100,000,000 upon Section 8.05) that are Not Otherwise Applied and (iii) if the Total Leverage Ratio as of the last day of any the immediately preceding Test Period being less than 5.0 (after giving Pro Forma Effect to 1.0such additional Restricted Payments) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing is 5.50:1 or would result therefromless, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16Cumulative Excess Cash Flow that is Not Otherwise Applied; provided, however, that the Borrower Company shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will not make such dividends and distributions (the “any Restricted Payments Interest Expense Election”pursuant to this Section 7.06(i) during the Pre-IPO Period. For the purpose of this Agreement, “Cumulative Excess Cash Flow” means the sum of Excess Cash Flow (but not less than zero in respect of any period) for the Indebtedness specified in such notice only so long as no Default shall have occurred fiscal year ending on December 31, 2006 and be continuing or would result therefrom; and
(l) the declaration Excess Cash Flow for each succeeding and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).completed fiscal year;
Appears in 3 contracts
Samples: Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (GL Trade Overseas, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the each Restricted Subsidiaries Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 (other than 7.04(f)), 7.05 (other than 7.05(e)(iv) and 7.05(g)) or 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and allow Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability Holdings Administrative Costs and any other liabilities permitted to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used incurred by Holdings (or any direct or indirect parent thereofpursuant to Section 7.14(b)(iv) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business;
(g) the Borrower and each Restricted Subsidiary may make Restricted Payments to allow Holdings and/or the Borrower to pay, for any taxable period for which Holdings, the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar tax group (including, for the avoidance of doubt, a fiscal unity (fiscale eenheid)) (a “Tax Group”), to pay the portion of the consolidated, combined or similar Taxes of such Tax Group for such taxable period that is attributable to the other members of such Tax Group; provided that (i) the amount of such payments for any taxable period shall not exceed the amount of such Taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) and (ii) payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Borrower or any of its Restricted Subsidiaries for such purpose;
(h) the Borrower and each Restricted Subsidiary may make Restricted Payments in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable the Available Additional Basket at such time; provided, that (i) no Default or Event of Default has occurred and customary indemnification claims made by directors is continuing or officers would result therefrom and (ii) after giving effect thereto, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of Holdings the end of the most recently ended Test Period, shall be no greater than 6.50:1.00;
(or any direct or indirect parent thereofi) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to may pay (or to make Restricted Payments to allow Holdings or any other direct or indirect parent thereof of the Borrower to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower or such Restricted Subsidiary (or Holdings or any other such parent of Borrower) by any future, present or former employee employee, consultant, officer or director of the Borrower or such Restricted Subsidiary (or Holdings or any other such parent of Borrower) (or any spouse or former spouse, or any entity Controlled by any of its Subsidiaries the foregoing Persons) or upon the death, disability or termination of employment of such officers, directors, employees and consultants, their authorized representative, executor, administrator, distributee, estate, heir or xxxxxx, pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription subscription, investor or shareholder agreement) with any employee employee, consultant, officer or director of the such Borrower or such Restricted Subsidiary (or Holdings or any other such parent of its Subsidiaries; providedBorrower), however, that the in an aggregate amount of payments made pursuant not to this clause (f) does not exceed in any fiscal year of the Borrower twelve month period, $15,000,000 7 million (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being permitted to be carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 5 million); provided that such amount in any calendar year may be increased by an amount not to exceed (which shall increase to $40,000,000 subsequent to a) the consummation aggregate net cash proceeds from any issuance during such period of a Qualifying IPOEquity Interests by Holdings (or any direct or indirect parent of Holdings);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional and its Restricted Payments in an aggregate amountSubsidiaries to such employees, together with officers, directors, consultants or representatives plus (b) the aggregate amount net cash proceeds from any payments on life insurance policies of which Holdings (i) prepaymentsor any direct or indirect parent of Holdings), redemptionsthe Borrower and its Restricted Subsidiaries is the beneficiary with respect to such employees, purchasesofficers, defeasances directors or consultants the proceeds of which are used to repurchase, redeem or acquired Equity Interests of Holdings (or any direct or indirect parent of Holdings), the Borrower and other payments in respect its Restricted Subsidiaries held by such employees, officers, directors or representative; provided further that the Borrower may elect to apply all or any portion of Junior Financings made pursuant to Section 7.13(a)(ivthe aggregate increase contemplated by the preceding clauses (a) and (ii) loans and advances made pursuant to Section 7.02(mb) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactionscalendar year;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower and any Restricted Subsidiary may make Restricted Payments with to acquire the proceeds of the issuance of Qualified Equity Interests of held by any minority shareholder in any joint venture or Subsidiary that is not wholly-owned directly or indirectly by Borrower, subject to the Borrowerlimitations set forth in Section 7.02;
(k) if the Borrower shall become or any Restricted Subsidiary may pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(l) Restricted Payments in the amount of any Excluded Contribution or the Net Proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies;
(m) any purchase or acquisition from, or withholding on issuance to, any employee of the Borrower or any Restricted Subsidiary of HoldingsEquity Interests of the Borrower (or Holdings or any other direct or indirect parent of the Borrower) in order to satisfy any applicable foreign, so long as Federal, state or local tax payments in respect of the receipt of such Equity Interests in an aggregate amount not to exceed $2 million;
(n) other Restricted Payments; provided, that (i) no Default shall have or Event of Default has occurred and be is continuing or would result therefromtherefrom and (ii) at the time of, dividends and distributions which will be used to fund after giving effect to, the payment thereof, the Consolidated Total Net Leverage ratio (calculated on a Pro Forma Basis) shall be no greater than 4.00:1.00;
(o) Restricted Payments up to an amount in any calendar year not to exceed 6% of interest and fees on Indebtedness of Holdings permitted by Section 7.16Market Capitalization at the time such Restricted Payment is declared (after taking into account any other Restricted Payments previously made in reliance upon this clause (o) during such calendar year); provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have or Event of Default has occurred and be is continuing or would result therefrom; and
(lp) any Restricted Payment within 60 days after the date of declaration or notice of such Restricted Payment, if at the date of declaration or notice, the Restricted Payment would have complied with the provisions of this Section 7.06. For purposes of determining compliance with this Section 7.06, in the event that any Restricted Payment meets the criteria of more than one exceptions described in Sections 7.06(a) through 7.06(p), the Borrower shall, in its sole discretion, classify and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent reclassify or later divide, classify or reclassify such holder Restricted Payment (or its affiliatesany portion thereof) participates and will only be required to include the amount and type of Restricted Payment in one or more of the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)above clauses.
Appears in 3 contracts
Samples: Credit Agreement (Playa Hotels & Resorts N.V.), Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 Section 7.07 (other than than, in each case, by reference to this Section 7.08(f7.06(d));
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower or any of its SubsidiariesSubsidiary, including withholding and similar Taxes related to such payments; provided, however, provided that the aggregate amount of such payments made pursuant to this clause (f) does do not exceed $20,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to the succeeding calendar years subject so long as the aggregate amount of all Restricted Payments made pursuant to a maximum (without giving effect to the following provisothis Section 7.06(f) of $30,000,000 in any calendar year (which after giving effect to such carry-forward) shall increase to not exceed $40,000,000 subsequent to the consummation of a Qualifying IPO40,000,000);
(g) [reserved];
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of issuing fractional Equity Interests and (ii) perform its obligations under convertible Indebtedness, including without limitation Permitted Convertible Indebtedness;
(j) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountamount not to exceed $35,000,000 in the aggregate;
(k) [reserved];
(l) [reserved];
(m) the distribution, together with by dividend or otherwise, of Equity Interests or Indebtedness owed to the aggregate amount Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so long as the primary assets of such Unrestricted Subsidiary are not cash or Cash Equivalents;
(n) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) prepayments, redemptions, purchases, defeasances no Event of Default has occurred and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) is continuing and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Net Leverage Ratio as of the last day of the most recently ended Test Period, after giving Pro Forma Effect to such Restricted Payment, is not greater than (A) on any Test Period being date of determination prior to December 31, 2023, the Total Net Leverage Ratio that is 0.50 to 1.00 less than 5.0 to 1.0) the maximum Total Net Leverage Ratio applicable under the TNLR Financial Covenant at such time and (B) on any date of determination on or after December 31, 2023, the Cumulative Growth Amount;Total Net Leverage Ratio that is 0.25 to 1.00 less than the maximum Total Net Leverage Ratio applicable under the TNLR Financial Covenant at such time; and
(io) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified in an amount not to exceed $175,000,000 in any calendar year to repurchase common Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice solely to the extent such holder (necessary to offset dilution of the Borrower’s common Equity Interests resulting from Equity Interests issued or its affiliates) participates granted to channel partners and contractors or in the Receivables Management Business connection with director or employee compensation or benefit plans (including as a lender or financier under any financing provided to a Receivables Management Subsidiaryresult of vesting).
Appears in 3 contracts
Samples: Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Spin-Off Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the payment of all fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $150,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $400,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) 3.00% of Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom and the Fixed Charge Coverage Ratio on a consolidated basis for the Borrower and its Restricted Subsidiaries Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available immediately preceding such date is at least 2.00 to 1.00, determined on a pro forma basis, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
Holdings (gor any direct or indirect parent thereof) that is directly attributable to the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lvii) amounts payable pursuant to (x) the declaration and payment Investor Management Agreement or (y) any of dividends and distributions on the Equity Interests Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of any Receivables Management Subsidiary the board of directors of the Borrower to holders of minority interests substantially consistent with past practice the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such holder (amounts are not paid directly by Borrower or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Subsidiaries;
Appears in 3 contracts
Samples: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);
(g) the Borrower may make Restricted Payments in an aggregate amount equal to when combined with the amount applied to make prepayments of Junior Financing pursuant to Section 7.13(a)(v) (x) $100,000,000, plus (y) ifthe portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.25:1.00, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph, such election to1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom;
(h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to paypay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; and
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant up to this clause (f) does not exceed in any fiscal year 6% per annum of the net proceeds received by (or contributed to) the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying and its Restricted Subsidiaries from such Qualified IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);; and
(hk) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 3 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare or makeNeither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section Section 7.03) of such Person;
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, contingent or potential) with respect theretopurchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.02 (other than Section 7.08(fSections 7.02(e) and (m)), 7.04 or 7.08 (other than Sections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $35,000,000 in any calendar year (which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $60,000,000 in any calendar year or $120,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, officers, members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the greater of (i) $230,000,000 and Holdings (ii) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, any costs, expenses and liabilities incurred by the Company in connection with any litigation or arbitration attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar foreign, federal, state or local income or similar tax group that includes the Borrower and/or its Subsidiaries (a “Tax Group”) and whose common parent is a direct or indirect parent of Borrower, to the extent such income or similar Taxes are attributable to the income of the Borrower and/or its Restricted Subsidiaries and, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its applicable Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in respect of the relevant foreign, federal, state or local income or similar Taxes for such fiscal year had the Borrower and its Subsidiaries (including its Unrestricted Subsidiaries to the extent described above), as applicable, (A) paid such Taxes separately from any such parent company or (B) if the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, were the Borrower a taxpayer and parent of a consolidated group and had paid such taxes for the Borrower and its Subsidiaries (including its Unrestricted Subsidiaries to the extent described above);
(iv) in amounts sufficient for Tempo Holding Company LLC (“Tempo Holding”) to make (A) if and for so long as Tempo Holding is treated as a partnership for U.S. federal, state or local income tax purposes, any dividends or distributions required or permitted by Section 4.01(c) of the Second Amended and Restated Limited Liability Company Agreement of Tempo Holding Company, LLC (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Tempo Holding LLCA”) and (B) if there is a successor to Tempo Holding (whether by way of merger, consolidation, conversion, acquisition of substantially all of such Tempo Holding’s assets or otherwise) or if Tempo Holding becomes an entity disregarded as separate from a new parent entity, if and for so long as such successor or parent is treated as a partnership for U.S. federal, state or local income tax purposes, any dividends or distributions required or permitted to be made by such successor or parent (or dividends or distributions to such parent in amounts sufficient for such parent to make any dividends or distributions required or permitted) by the provision in such successor’s or such parent’s operating agreement that is analogous to Section 4.01(c) of the Tempo Holding LLCA, as applicable; provided, that such amounts described in this clause (iv) shall not be in excess of the amounts required or permitted by Section 4.01(c) of the form of the Tempo Holding LLCA attached as Exhibit I to the Business Combination Agreement as in effect on the Amendment No. 7 Effective Date;
(v) without duplication of clauses (iii) or (iv) above, for any taxable period (or portion thereof) in which Tempo Holding is treated as a disregarded entity for U.S. federal income tax purposes (other than as described in clause (iv)(B) above), payments to the owner or owners of equity of Tempo Holding (or, if a Holdings Election Event shall occurdirect owner is a pass-through entity, of indirect owner(s)) in an aggregate amount equal to (A) the aggregate taxable income of Tempo Holding and its direct and indirect Subsidiaries, multiplied by (B) the highest combined marginal federal, state and/or local income tax rate applicable to an individual residing in California or New York, New York (whichever is higher for the relevant period);
(vi) to finance any Investment that would be permitted to be made pursuant to Section 7.02 if such parent were subject to such Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 Section 6.11;
(vii) the proceeds of which shall be used to be complied withpay customary salary, within bonus and other benefits payable to officers and employees of Holdings, the time periods specified therein (Borrower or any direct or indirect parent company of the Borrower to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vviii) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementthe Borrower (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant (or their respective Controlled Investment Affiliates and Immediate Family Members) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the issuance of restricted stock units or similar stock based awards;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of the Borrower or any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hl) after a Qualified IPO and so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.00% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed 5.00% of Market Capitalization;
(m) distributions or payments of Securitization Fees;
(n) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of appraisal rights and the settlement of any reduction claims or action (whether actual, contingent or potential)), pursuant to or in taxes realized by connection with a consolidation, merger or transfer of all or substantially all of the assets of the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the TransactionsSubsidiaries, taken as a whole;
(jo) so long as no Default shall have occurred and be continuing the distribution, by dividend or would result therefromotherwise, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets) or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower shall become the Subsidiary of Holdingselects to apply under this clause (p) or (ii) without duplication with clause (i), so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in such notice only so long as no Default shall have occurred and be continuing or would result therefromeach case, to the extent Not Otherwise Applied; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)provisions of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Company may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Company (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Company or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Company (or any direct or indirect parent of the Company) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Lead Borrower or any Subsidiary; provided that such payments do not to exceed $25,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $50,000,000; provided further that cancellation of Indebtedness owing to the Company (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Company, any of the Company’s direct or indirect parent companies or any of the Company’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Company’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Company:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Company or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Company and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Company or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Company attributable to the direct or indirect ownership or operations of the Borrower Company and its Subsidiaries) and fees and expenses otherwise due and payable by the Company or any Restricted Subsidiary and permitted to be paid by the Company or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Company or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(gh) the Borrower Company or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Company or other acquisition or retirement for value any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) within sixty (60) days following the Borrower by any futureconsummation of a Specified Disposition, present or former employee or director of the Borrower Company or any of its Subsidiaries pursuant may pay dividends to any employee or director equity plan, employee or director stock option plan the Holding Company (or any other employee direct or director benefit plan indirect parent thereof) with all or any agreement (including any stock subscription or shareholder agreement) with any employee or director portion of the Permitted Specified Disposition Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant Subsidiaries to this clause pay such dividend;
(fk) does not exceed in any fiscal year of the Borrower $15,000,000 within sixty (which shall increase to $20,000,000 subsequent to 60) days following the consummation of a Qualifying IPOPermitted LifeCell Disposition, with unused amounts in the Company or any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect of its Subsidiaries may pay dividends to the following provisoHolding Company (or any direct or indirect parent thereof) with all or any portion of $30,000,000 in any calendar year the Permitted LifeCell Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (which shall increase to $40,000,000 subsequent 10) Business Days prior to the consummation payment of a Qualifying IPO)such dividend of the intent of the Company or any of its Subsidiaries to pay such dividend;
(hl) so long as the Company or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 the Company shall have been in compliance, on a Pro Forma Basis, with the Financial Covenants as of the end of the most recent Test Period and (such amount to be increased to $100,000,000 upon B) the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional such Restricted Payments Payment in an amount (together with the aggregate amount in excess of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom$50,000,000, the Lead Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(lm) the declaration and payment by the Company of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Company or the Holding Company following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Company in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 3 contracts
Samples: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Borrower) or 7.08 (other than Section 7.08(f7.08(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent of the Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower (or of any direct or indirect parent of the Borrower) in connection with any such repurchase, retirement or other acquisition or retirement);
(g) the Borrower may make Restricted Payments to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) its operating costs and expenses incurred in the ordinary course of business and other overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) legal existence;
(iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) or (2) the merger or amalgamation (to the extent not prohibited by Section 7.04) of the Person formed or acquired into the Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) in order to consummate such Permitted Acquisition, in each case, in accordance with the applicable requirements of Section 6.11;
(v) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any equity or debt offering not prohibited by this Agreement (whether or not successful) and directly attributable to the operation of the Borrower and its Restricted Subsidiaries; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries, only to the extent such amounts are deducted, for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, in calculating Consolidated EBITDA for any period;
(h) the Borrower or any of its Subsidiaries; providedRestricted Subsidiaries may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, however, that the aggregate amount split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments made pursuant to this clause (f) does not exceed in lieu of fractional shares in connection with any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)such conversion;
(hi) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, officer, manager or consultant (or any Controlled Investment Affiliate or Immediate Family Member) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; and
(l) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(i)(D) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (Ai) the greater of $75,000,000 250,000,000 and 2.125% of Total Assets, in each case determined at the time of such Restricted Payment, and (ii) so long as immediately after giving effect to such amount to be increased to $100,000,000 upon Restricted Payment, the Total Leverage Ratio as of for the last day of any Test Period being immediately preceding such Restricted Payment calculated on a pro forma basis for such Restricted Payment in accordance with Section 1.10 is less than 5.0 or equal to 6.5 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include Available Amount at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 3 contracts
Samples: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Restricted Payments. Declare The Borrower 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:
except (a) the Borrower or any Subsidiary may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in shares of its Qualified Equity Interests or options to purchase Qualified Equity Interests; (ib) each Subsidiaries may declare and make Restricted Subsidiary Payments ratably with respect to their Equity Interests; (c) so long as no Event of Default has occurred and is continuing, the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for present or former officers, directors, consultants or employees of the Borrower and to other Restricted its Subsidiaries (i) in existence on the Closing Date and listed on Schedule 6.04 and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments other such plans adopted following the Closing Date in an aggregate amount pursuant to the Borrower and this subclause (ii) not to exceed $30,000,000 in any other Restricted Subsidiary and to each other owner of Equity Interests fiscal year (with unused amounts of such Restricted Subsidiary based on their relative ownership interests of base amount available for use succeeding fiscal years so long as the relevant class of Equity Interests;
aggregate amount expended pursuant to this subclause (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactionsii) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
fiscal year does not exceed $45,000,000); (d) [reserved]; (e) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 6.07 (other than Section 7.08(f6.07(a);
); (ef) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
; (fg) the Borrower so long as no Event of Default has occurred and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdingsis continuing, the Borrower may pay dividends on, or repurchase or redeem, its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, Equity Interests in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments$45,000,000 for the year beginning on the Closing Date through the first anniversary of the Closing Date, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed for each year thereafter ending on the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as anniversary of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromClosing Date, the Borrower may make additional Restricted Payments in an amount (together with permitted during the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized previous year multiplied by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)1.1.
Appears in 3 contracts
Samples: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)
Restricted Payments. Declare None of the Parent, the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent, the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent, the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Parent, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments in connection with Payment; provided that the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoRestricted Payment Conditions are satisfied;
(d) Restricted Payments in an aggregate amount not to exceed the Available Equity Amount; provided that no Event of Default has occurred and is continuing immediately after giving effect to such Restricted Payment;
(e) to the extent constituting Restricted Payments, the Parent, the Borrower and the other Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 7.07 (other than Section 7.08(fSections 7.07(d) or 7.07(i));
(ef) repurchases of Equity Interests in the Parent, the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Parent, the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow the Parent or the Borrower or any other direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower by or any other such direct or indirect parent thereof) from any future, present or former employee employee, officer, director, manager or director consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of thereof) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager, director, officer or director consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $20,000,000 in any fiscal year; provided further, no Event of Default shall have occurred and then be continuing; provided, howeverfurther, that such amount in any fiscal year may be increased by an amount not to exceed:
(i) to the extent contributed to the Parent or the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Parent or the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Parent or the Borrower, any of their respective Subsidiaries or any of their respective direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Parent, the Borrower or any Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Restricted Payments in an aggregate amount equal to, the sum of (x) when combined with prepayments of Indebtedness pursuant to Section 7.10(a)(iv), the greater of (i) $175,000,000 and (ii) 25.00% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments) at the time of such Restricted Payment and (y) the portion, if any, of the Cumulative Credit on the date of making such Restricted Payment that the Borrower elects to apply to this clause (h)(y), provided that, in the case of this clause (h)(y) the Cumulative Credit Conditions are satisfied; provided further in the case of clause (h)(x), no Event of Default shall have occurred and then be continuing;
(i) the Parent may pay or make dividends or distributions (each, a “Permitted Tax Distribution”) to any equity holder of the Parent used to pay foreign, federal, state, provincial, territorial or local income taxes of such equity holder, to the extent such income taxes are attributable to the income of the Parent (other than income attributable to its Unrestricted Subsidiaries) and, with respect to income attributable to its Unrestricted Subsidiaries, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes attributable to the income of such Unrestricted Subsidiaries; provided that the aggregate amount of payments made by the Parent pursuant to this clause (fSection 7.06(i) with respect to any fiscal year does not exceed the amount of taxes that the Parent would be required to pay in any respect of such income (to the extent described above with respect to income attributable to Unrestricted Subsidiaries) for such fiscal year of were the Borrower $15,000,000 (which shall increase Parent to $20,000,000 subsequent to the consummation of pay such taxes as a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)corporation for income tax purposes;
(hj) payments made using the Asset Sale RP Amount and/or the Specified Asset Sale RP Amount so long as no Event of Default shall have occurred and be continuing at the time of such payment and immediately after giving effect thereto;
(k) payments made or would result therefromexpected to be made by the Parent, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount or any of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the form exercise of refunds or deductions realized stock options;
(l) any Restricted Payments in connection with the Transactions;
(jm) so long as no Default shall have occurred and be continuing or would result therefromthe Parent, the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any acquisition permitted under Section 7.02 and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make Restricted Payments payments on convertible Indebtedness in accordance with its terms;
(n) the proceeds purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the issuance exercise or exchange price thereof, and any purchase, redemption or other acquisition or retirement for value of Qualified Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests;
(o) the purchase, redemption or other acquisition or retirement for value of Equity Interests of the BorrowerParent or any Restricted Subsidiary representing fractional units of such Equity Interests in connection with a merger or consolidation involving the Parent or such Restricted Subsidiary or any other transaction permitted by this Agreement;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice payments to the Administrative Agent stating General Partner constituting reimbursements for expenses in accordance with the Parent’s LPA as in effect on the Closing Date and as it may be amended or replaced thereafter; provided that any such amendment or replacement is not materially less favorable to the Borrower will make Parent in any material respect than the agreement prior to such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing amendment or would result therefromreplacement; and
(lq) in connection with an acquisition by the declaration and payment Parent or any of dividends and distributions on its Restricted Subsidiaries, the return to the Parent or any of its Restricted Subsidiaries of Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (Parent or its affiliates) participates Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or purchase price adjustments. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (including as a) through (m) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a lender portion of such Restricted Payment or financier under any financing provided to portion thereof in a Receivables Management Subsidiary)manner that complies with this Section 7.06.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may pay (or make a corresponding Restricted Payment Payments to allow the Borrower or any other direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Holdings Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) attributable from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to Holdingsany employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $18,750,000 in any calendar year (which shall increase to $37,500,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $31,250,000 in any calendar year or $62,500,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; plus
(iii) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of any Parent Entity, the Borrower or its Subsidiaries determined as if in connection with the Borrower and its Subsidiaries filed separately;Transactions that are foregone in return for the receipt of Equity Interests; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i), (ii) and (iii) of this Section 7.06(g); provided that, the proceeds Borrower may elect to apply all or any portion of which shall be used the aggregate increase contemplated by Holdings clauses (i), (ii) and (iii) above in any calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower or any of its Restricted Subsidiaries from any future, present or former employees, directors, officers, members of management or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members), of the Borrower, any Restricted Subsidiary, any direct or indirect parent thereofcompany of the Borrower or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $30,000,000 and 2.0% of Total Assets, plus (y) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, if such payment is made from the proceeds of clause (b) of the definition of “Cumulative Credit,”: (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is greater than or equal to 4.00 to 1.00;
(i) the Borrower may make Restricted Payments to a Parent Entity:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) in amounts required for any Parent Entity 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 Restricted Subsidiaries or, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in respect of the relevant foreign, federal, state or local income or similar taxes for such fiscal year had the Borrower, its Restricted Subsidiaries and/or its Unrestricted Subsidiaries (to the extent described above), as applicable, (A) been liable for such taxes separately from any such parent company or (B) if the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, been a taxpayer and parent of a consolidated group (or otherwise liable for the taxes of its Subsidiaries) and had paid such taxes for the Borrower, its Restricted Subsidiaries and/or its Unrestricted Subsidiaries (to the extent described above), provided further, that no payment may be made pursuant to both this subclause (iii) and subclause (iv) of this clause (i) with respect to any period;
(iv) if for so long as Borrower is classified as a Holdings Election Event shall occurpartnership or disregarded entity for U.S. federal income tax purposes, with respect to each fiscal year, distributions to each owner in amounts not to exceed the federal, state and local income tax liability of such owner attributable to the taxable income of the Borrower and its Restricted Subsidiaries for such fiscal year (as determined based on such assumptions as may be made by the board of directors of Borrower, including, without limitation, an assumption that all such owners are subject to the highest combined federal, state and local tax rates applicable to the income of individuals or corporations, resident of New York, New York, whichever is higher) provided further, that no payment may be made pursuant to both this subclause (iv) and subclause (iii) of this clause (i) with respect to any period;
(v) to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(vi) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Borrower or any Parent Entity to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvii) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent Parent Entity thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementBorrower (or any Parent Entity thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) if the Borrower shall become or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (ii) Restricted Payments not to exceed up to 6% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO ;
(m) the Borrower may pay any dividends or distributions within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(n) [reserved];
(o) the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary); provided that such Restricted Subsidiary owns no assets other than Equity Interests of Holdings, so long as no Default shall have occurred an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents);
(p) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected elects to include such amounts apply under this clause (p) or (ii) without duplication with clause (i), in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in such notice only so long as no Default shall have occurred and be continuing or would result therefromeach case, to the extent Not Otherwise Applied; and
(lq) payments and distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger, amalgamation or transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole that complies with the terms of this Agreement.
(r) to pay interest and/or principal (including AHYDO “catch-up payments”) on Indebtedness the proceeds of which have been contributed to the Borrower or any Restricted Subsidiary in cash as common equity (or other equity reasonably acceptable to the Administrative Agent); provided that (i) the declaration principal amount of such Indebtedness shall increase Consolidated Total Debt on a dollar-for-dollar basis, (ii) all interest expense relating to such Indebtedness shall (x) reduce Consolidated Net Income and payment (y) increase Consolidated Interest Expense, in each case on a dollar-for-dollar basis, and (iii) such contribution of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)equity shall be disregarded for all purposes hereunder.
Appears in 2 contracts
Samples: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptother than the declaration or making of the following:
(a1) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other or any Restricted Subsidiaries and Subsidiary (ii) each or, in the case of any non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and Borrower, any other Restricted Subsidiary and to each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary based on Subsidiary) according to their relative ownership interests of the relevant class of Equity Interestsinterests);
(b2) the Borrower declaration and each making of any Restricted Subsidiary may declare and make dividend payments or other distributions Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Stock) of such Personthe Borrower;
(c3) Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;
(4) to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));
(5) repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the Transaction exercise of stock options or the vesting of any equity awards;
(6) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription, shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be paid under, increased by,
(a) the amount of net proceeds of any key man life insurance policies received by the Borrower or contemplated byany Restricted Subsidiary after the Closing Date;
(b) to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the Transaction Agreement) and proceeds from the fees and expenses related thereto owed to Affiliates, including any payment to holders sale of Equity Interests of the Borrower or any direct or indirect parent thereof (immediately prior other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to giving effect any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and
(c) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;
(7) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the TransactionsEquivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;
(8) Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):
(a) distributions made pursuant to Section 4.01(b) of the LLC Agreement;
(b) operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(c) franchise taxes and other fees, taxes and expenses in connection with, with (i) the ownership of the Borrower or as a result of, their exercise any Restricted Subsidiary or (ii) the maintenance of appraisal rights and the settlement of Borrower’s or any claims such parent entity’s corporate or actions (whether actual, contingent or potential) with respect theretolegal existence;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of Section 7.04 or 7.08 other than Section 7.08(f)such Restricted Payment;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02Permitted Investment; provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings shallthe Borrower will, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) or (2B) the merger (to the extent permitted in Section 7.046.05) of the Person formed or acquired with or into the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) in order to consummate such Investment;
(f) costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted AcquisitionInvestment, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)whether or not consummated; and
(vg) if a Holdings Election Event shall occur(i) customary salary, the proceeds of which shall be used by Holdings bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);
(9) Restricted Payments to pay (or permit any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof entity to pay) fees and expenses cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;
(10) [Reserved];
(11) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to Affiliatesa Restricted Subsidiary of the Borrower) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of its Subsidiaries pursuant common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;
(12) Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;
(13) Restricted Payments of Investments in one or more Unrestricted Subsidiaries;
(14) Restricted Payments (the proceeds of which may be utilized by any employee or director equity planParent Entity) in an aggregate amount not to exceed, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) when taken together with any employee prepayments, repayments, redemptions, purchases, defeasances or director satisfactions made under clause (1)(f) of Section 6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the Borrower or any amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of its Subsidiariesthe applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided, howeverin each case, that the aggregate amount no Event of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing either immediately before, or would result therefromafter, giving Pro Forma effect to, such Restricted Payment;
(15) Restricted Payments; provided that both immediately prior to and after giving Pro Forma Effect to such Restricted Payment, the RP Payment Conditions are satisfied; and
(16) the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off. The amount set forth in Section 6.07(14) may make additional Restricted Payments in an aggregate amount(without duplication), together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted Payments, be utilized by this clause (h), not the Borrower or any Restricted Subsidiary to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing make or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of hold any Investments made pursuant without regards to Section 7.02(v)6.04 or (ii) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds prepay, repay redeem, purchase, defease or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice otherwise satisfy prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of scheduled maturity thereof any Receivables Management Subsidiary Junior Financing without regards to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Section 6.11.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptother than the declaration or making of the following:
(a1) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other or any Restricted Subsidiaries and Subsidiary (ii) each or, in the case of any non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and Borrower, any other Restricted Subsidiary and to each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary based on Subsidiary) according to their relative ownership interests of the relevant class of Equity Interestsinterests);
(b2) the Borrower declaration and each making of any Restricted Subsidiary may declare and make dividend payments or other distributions Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Stock) of such Personthe Borrower;
(c3) Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;
(4) to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));
(5) repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the Transaction exercise of stock options or the vesting of any equity awards;
(6) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription, shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be paid under, increased by,
(a) the amount of net proceeds of any key man life insurance policies received by the Borrower or contemplated byany Restricted Subsidiary after the Closing Date;
(b) to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the Transaction Agreement) and proceeds from the fees and expenses related thereto owed to Affiliates, including any payment to holders sale of Equity Interests of the Borrower or any direct or indirect parent thereof (immediately prior other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to giving effect any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and
(c) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;
(7) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the TransactionsEquivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;
(8) Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):
(a) distributions made pursuant to Section 4.01(b) of the LLC Agreement;
(b) operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(c) franchise taxes and other fees, taxes and expenses in connection with, with (i) the ownership of the Borrower or as a result of, their exercise any Restricted Subsidiary or (ii) the maintenance of appraisal rights and the settlement of Borrower’s or any claims such parent entity’s corporate or actions (whether actual, contingent or potential) with respect theretolegal existence;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of Section 7.04 or 7.08 other than Section 7.08(f)such Restricted Payment;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02Permitted Investment; provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings shallthe Borrower will, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) or (2B) the merger (to the extent permitted in Section 7.046.05) of the Person formed or acquired with or into the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) in order to consummate such Investment;
(f) costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted AcquisitionInvestment, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)whether or not consummated; and
(vg) if a Holdings Election Event shall occur(i) customary salary, the proceeds of which shall be used by Holdings bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);
(9) Restricted Payments to pay (or permit any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof entity to pay) fees and expenses cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;
(10) [Reserved];
(11) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to Affiliatesa Restricted Subsidiary of the Borrower) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of its Subsidiaries pursuant common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;
(12) Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;
(13) Restricted Payments of Investments in one or more Unrestricted Subsidiaries;
(14) Restricted Payments (the proceeds of which may be utilized by any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement Parent Entity) in an aggregate amount not to exceed the sum of:
(including any stock subscription or shareholder agreementa) when taken together with any employee prepayments, repayments, redemptions, purchases, defeasances or director satisfactions made under clause (1)(f)(i) of Section 6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the Borrower or any amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of its Subsidiariesthe applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided, howeverin each case, that the aggregate amount no Event of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which Default shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);have occurred and be continuing; and
(hb) so long as the Available Amount at such time; provided that (i) no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (ii) loans and advances made pursuant solely with respect to Section 7.02(m) in lieu of Restricted Payments permitted by this amounts attributable to clause (h)2) of the definition of the Available Amount, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Net Leverage Ratio as of the last day of any Test Period being (after giving Pro Forma Effect to such Restricted Payment) would be less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Closing Date Total Net Leverage Ratio;
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Impax Laboratories, LLC), Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) : each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) ); the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) ; Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) Acquisition Agreement; to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f);
(e) ); repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) ; the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed: to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus the Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); the Borrower may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.25:1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower: to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iii) ; the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
; for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (iva “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) if a Holdings Election Event with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall occurbe limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes; to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11; the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to paypay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) ; payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed the greater of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant (A) up to this clause (f) does not exceed in any fiscal year 6% per annum of the Borrower $15,000,000 net proceeds received by (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following provisoor contributed to) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional and its Restricted Subsidiaries from such Qualified IPO and (B) Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (Aw) $75,000,000 (90.0 million, so long as, on a Pro Forma Basis after giving effect to the payment of any such amount to be increased to $100,000,000 upon Restricted Payment, the Total Leverage Ratio as of shall be no greater than 5.00 to 1.00 and greater than 4.50 to 1.00, (x) $120.0 million, so long as, on a Pro Forma Basis after giving effect to the last day payment of any Test Period being less such Restricted Payment, the Total Leverage Ratio shall be no greater than 5.0 4.50 to 1.01.00 and greater than 4.00 to 1.00, (y) the greater of (a) $120.0 million and (Bb) the Cumulative Growth Amount;
(i) 7.5% of Market Capitalization, so long as as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no Default greater than 4.00 to 1.00 and greater than 3.50 to 1.00 and (z) an unlimited amount, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall have occurred be no greater than 3.50 to 1.00; and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 2 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments (i) to the Borrower and to other Restricted Subsidiaries and (ii) each in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; provided that no Restricted Payment of the type described in preceding clause (ii) (other than tax distributions) shall be made at any time an Event of Default has occurred and is continuing;
(b) the Holding Companies, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; provided that to the extent required pursuant to the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (d);
(e) repurchases of Equity Interests in Holdco and the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdco by any future, present or former employee employee, director or director manager of the Borrower or any of its Restricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Related Persons) upon the death, disability or termination of employment of such persons or pursuant to any employee employee, director or director manager equity plan, employee employee, director or director manager stock option plan or any other employee employee, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director or director manager of the Borrower or any of its SubsidiariesRestricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Related Persons) (and the Borrower may pay dividends or distributions to Holdco to fund such Restricted Payments); provided, however, provided that the aggregate amount of payments Restricted Payments made by the Borrower pursuant to this clause (fe) does not exceed in any fiscal year of after the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOClosing Date, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together when combined with the aggregate amount of all cash payments (whether principal or interest) made by the Borrower in respect of any promissory notes pursuant to Section 7.03(h) after the Closing Date, shall not exceed $1,000,000;
(f) the Borrower may make Restricted Payments to the Holding Companies:
(i) prepayments, redemptions, purchases, defeasances the proceeds of which shall be used by a Holding Company to pay franchise taxes and other payments in respect of Junior Financings made pursuant fees, taxes and expenses required to Section 7.13(a)(iv) and maintain its limited liability company existence; and
(ii) of up to $2,500,000 per year (in the aggregate with any loans and advances made to the Holding Companies pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by reliance on this clause paragraph (hf)), not the proceeds of which shall be used by the Holding Companies to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amountpay corporate overhead expenses;
(ig) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with to Holdco, the proceeds of which shall be distributed by Holdco to the issuance of Qualified Equity Interests of the Borrower;Principal BlockerCos:
(ki) if the Borrower which distributions shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used by the Principal BlockerCos to fund the payment of interest pay franchise taxes and fees on Indebtedness of Holdings permitted by Section 7.16; providedother fees, that the Borrower shall have elected taxes and expenses required to include such amounts in maintain its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromlimited liability company existence; and
(lii) of up to $250,000 during the declaration first twelve months after the Closing Date and payment of dividends up to $100,000 during any twelve-month period thereafter (in the aggregate with any loans and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice advances made to the extent Holdco pursuant to Section 7.02(m) in reliance on this paragraph (g)), which distributions shall be used by the Principal BlockerCos to pay corporate overhead expenses;
(h) Holdco may pay dividends or make distributions to its members with respect to the state and United States federal income tax liabilities of its members in respect of income earned by the Borrower and its Subsidiaries during any period in an aggregate amount not to exceed the payments received by Holdco from the Borrower pursuant to the Holding Company Tax Sharing Agreement with respect to such holder period; and
(i) Holdco may make Tax Distribution True-Up Amount Payments to its members using the proceeds of (i) a Qualified IPO by Holdco or its affiliates(ii) participates in a distribution from the Receivables Management Business Borrower made using the proceeds of a Qualified IPO by the Borrower (including as a lender or financier under and the Borrower shall be permitted to make any financing provided to a Receivables Management Subsidiarysuch distribution).
Appears in 2 contracts
Samples: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Restricted Payments. Declare or make, directly or indirectly, any Restricted PaymentPayment on or after the Fifth Amendment Effective Date, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO20,000,000, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 40,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)year;
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (West Corp), Credit Agreement (West Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(m)) or 7.04 or 7.08 (other than Section 7.08(f7.04(g));
(ed) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants pursuant to programs, agreements or plans approved by the Borrower’s board of directors;
(e) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow any direct or indirect parent company to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower or any Subsidiary (or any direct or indirect parent company thereof) from any future, present or former employee, officer, director, manager or consultant of the Borrower or any Subsidiary (or any direct or indirect parent company thereof) (and/or their respective estates, successors, heirs, family members, spouses, domestic partners, former spouses or former domestic partners) or (ii) make Restricted Payments to allow any direct or indirect parent of the Borrower to pay principal or interest on promissory notes that were issued to any from any future, present or former employee, officer, director, manager or consultant of the Borrower or any Subsidiary (or any direct or indirect parent company) (and/or their respective estates, successors, heirs, family members, spouses, domestic partners, former spouses or former domestic partners) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any such employee, manager, director, officer or consultant; provided that the aggregate amount of Restricted Payments made pursuant to this clause (e) shall not exceed, in any calendar year, $2,500,000;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount equal to Holdingsthe portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, the Cumulative Credit shall not be deemed available for purposes of this paragraph unless no Event of Default has occurred and Holdings is continuing or would result immediately therefrom and the Total Net Leverage Ratio calculated on a Pro Forma Basis after giving effect to such Restricted Payment is less than or equal to 2.00 to 1.00;
(g) Upon the consummation of a Permitted Change of Control Event or Permitted Holdco Reorganization, the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofcompany of the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, auditing, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its the Restricted Subsidiaries and, Transaction Expenses and any customary salary, bonus and other benefits payable to and reasonable and customary indemnification claims made by officers, employees, directors, managers, consultants or independent contractors of such parent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence, in each case, to the extent such Taxes, fees or expenses are attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries;
(iii) for any taxable period in which the Borrower (or, to the extent Borrower is treated as a disregarded entity for U.S. federal income tax purposes, the Borrower’s direct or indirect parent company) is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent company of the Borrower is the common parent, to pay U.S. federal, state and local income Taxes imposed on such common parent to the extent such income Taxes are attributable to the income of Borrower and its Subsidiaries that are members of such Tax Group (such Subsidiaries, a “Member Subsidiary”); provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such income Taxes that the Borrower and its Member Subsidiaries would have been required to pay if Borrower and the Member Subsidiaries paid such income Taxes as a stand-alone consolidated, combined or unitary income Tax group (reduced by any such Taxes paid directly by the Borrower or any Subsidiary and taking into account net operating losses of the Borrower and its Member Subsidiaries for the current tax period and prior tax periods to the extent such losses in a prior period have not previously been taken into account); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with or following the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (to pay customary salary, bonus and other benefits payable to officers and employees of the Borrower or any direct or indirect parent thereofcompany to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used to pay (or to make Restricted Payments distributions to allow any direct or indirect parent thereof company to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementissuance, incurrence or offering, any disposition or acquisition or any investment transaction (including the unwinding or settling of any Swap Contract) of any direct or indirect parent of the Borrower that is directly attributable to the operations of the Borrower and the Restricted Subsidiaries;
(gvii) the Borrower may proceeds of which shall be used to pay for interest and/or principal on Indebtedness contemplated by Section 7.06(e);
(viii) In connection with and following the repurchaseconsummation of a Permitted Change of Control Event, retirement or other acquisition or retirement for value of Equity Interests to pay Public Company Costs;
(h) Tax distributions in accordance with Section 5.2(b) of the Borrower’s limited liability company agreement;
(i) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee officer, employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) the Borrower and any Restricted Subsidiary may (a) pay (or make distributions to any parent company to pay) cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition or upon exercise, conversion or exchange of Equity Interests, warrants, options or other securities exercisable or convertible into, Equity Interests of the Borrower or any of its Subsidiaries pursuant to any employee direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent company of the Borrower and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms (or make distributions to any of its Subsidiaries; provided, however, that parent company to pay the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOforegoing);
(hk) so long as (a) no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (iib) loans and advances made pursuant to Section 7.02(m) in lieu of a Permitted SPAC Transaction has occurred or will occur concurrently with such Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromPayment, the Borrower may make Restricted Payments so long as the Total Net Leverage Ratio calculated on a Pro Forma Basis after giving effect to such Restricted Payment is less than or equal to 1.50 to 1.00;
(l) the Borrower may pay the Dividend within 120 days of the Closing Date; provided, that (i) after giving effect to the Dividend, no less than $25,000,000 in cash or Cash Equivalents shall remain in the accounts of the Borrower and the Guarantors and (ii) to the extent a Permitted SPAC Transaction has not consummated, prior to and after given effect to the Dividend, no Event of Default shall have occurred or be continuing or immediately result therefrom;
(m) the Borrower may make Restricted Payments in connection with the proceeds Permitted SPAC Transaction pursuant to the Permitted SPAC Transaction Documents including payments contemplated by the TRA and distributions to allow a parent entity to make any such payments;
(n) so long as no Event of Default exists or would result therefrom, Restricted Payments in an aggregate amount not to exceed 100% of the issuance Net Proceeds received by the Borrower subsequent to the consummation of any Permitted SPAC Transaction from the issue or sale of Qualified Equity Interests of the Borrower or cash contributed to the capital of the Borrower to the extent such Net Proceeds or cash (i) are Not Otherwise Applied, (ii) do not constitute a Cure Amount, (iii) are not received in connection with the consummation of the Permitted SPAC Transaction, (iv) are not contributed by a Loan Party or Restricted Subsidiary (other than contributions received by a Parent Company and contributed to Borrower;), and (v) have not been applied in reliance on Section 7.02(aa) or 7.13(vii); and
(ko) if the Borrower shall become and the Subsidiary Restricted Subsidiaries may make Restricted Payments in an amount not to exceed 10% of Holdings, Consolidated EBITDA for the most recently ended Test Period so long as (a) no Event of Default shall have has occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be is continuing or would result therefrom; and
(lb) a Permitted SPAC Transaction has occurred or will occur concurrently with such Restricted Payment; and (c) the declaration and payment of dividends and distributions Total Net Leverage Ratio calculated on the Equity Interests of any Receivables Management Subsidiary a Pro Forma Basis after giving effect to holders of minority interests substantially consistent with past practice such Restricted Payment is less than or equal to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided 2.00 to a Receivables Management Subsidiary)1.00.
Appears in 2 contracts
Samples: Credit Agreement (Nebula Parent Corp.), Credit Agreement (Nebula Parent Corp.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Borrowers and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Borrowers may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrowers and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Borrowers and the their Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Borrowers (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower Borrowers or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrowers (or any direct or indirect parent of the Borrowers) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrowers or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrowers (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrowers, any of the Borrowers’ direct or indirect parent companies or any of the Borrowers’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrowers’ direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrowers and its their Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrowers:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Borrowers or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Borrowers and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Borrowers or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors, managers and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrowers and their Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of the Borrowers attributable to the direct or indirect ownership or operations of the Borrower Borrowers and its their Subsidiaries) and fees and expenses otherwise due and payable by the Borrowers or any Restricted Subsidiary and permitted to be paid by the Borrowers or such Restricted Subsidiary under this Agreement not to exceed $5,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrowers or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower Borrowers or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureBorrowers to the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Borrowers and their Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) the Borrowers or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrowers or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) [Reserved];
(k) the Borrowers or any Restricted Subsidiary may make additional Restricted Payments; provided that the Payment Conditions shall have been satisfied with respect thereto;
(l) so long as no Event of Default shall have occurred and be continuing or would result therefrom, in addition to the Borrower foregoing Restricted Payments, Holdings, the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments to their respective direct and indirect shareholders in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom25,000,000; and
(lm) the declaration and payment by the Borrowers of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Borrowers following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Borrowers in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 2 contracts
Samples: Abl Credit Agreement (Cole Haan, Inc.), Abl Credit Agreement (Cole Haan, Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Spin-Off Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the payment of all fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $150,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $400,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) 3.00% of Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom and the Fixed Charge Coverage Ratio on a consolidated basis for the Borrower and its Restricted Subsidiaries Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available immediately preceding such date is at least 2.00 to 1.00, determined on a pro forma basis, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) the Investor Management Agreement or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Borrower to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Borrower or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) any Restricted Payment by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year other direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from the Qualified IPO and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed (x) 3.50% of Market Capitalization, if, on a Pro Forma Basis after giving effect to the payment of any reduction in taxes realized by such Restricted Payment, the Borrower Consolidated Total Net Leverage Ratio is greater than 5.50 to 1.00 and (y) 4.75% of Market Capitalization, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Subsidiaries in Payment, the form of refunds Consolidated Total Net Leverage Ratio shall be less than or deductions realized in connection with the Transactionsequal to 5.50 to 1.00;
(jm) so long as no Default shall have occurred and be continuing distributions or would result therefrom, the Borrower may make payments of Securitization Fees;
(n) Restricted Payments that are made with the net proceeds of the issuance Timeshare Disposition; provided that for the most recently ended Test Period immediately preceding the date of Qualified such Restricted Payment, after giving effect to the Timeshare Disposition and such Restricted Payment on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio is less than or equal to 5.40 to 1.00;
(o) the distribution, by dividend or otherwise, of Equity Interests of the Borrower;
an Unrestricted Subsidiary (k) if or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to the Borrower shall become or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the Subsidiary primary assets of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromare cash and/or Cash Equivalents); and
(lp) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Restricted Payments that are made (i) in an amount equal to the extent amount of Excluded Contributions previously received (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such holder (property or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)assets was financed with Excluded Contributions.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)
Restricted Payments. Declare or make, directly or indirectly, any No Obligor shall make a Restricted Payment, except:
(a) except (i) each Restricted Subsidiary any Obligor may make a Restricted Payments Payment to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or Event of Default would result therefromexist before or after giving effect thereto, the Borrower may make additional Restricted Payments in an aggregate amount, together shall be permitted with the aggregate amount of respect to: (i) prepaymentscash dividends equal to 6% per annum of the liquidation preference for the Series C Preferred Stock in accordance with the terms thereof on the date hereof, redemptions(ii) any cash dividends payable on the Borrower's Series D Preferred Stock in accordance with the terms thereof as in effect on the date hereof, purchases(iii) any cash dividends payable on the Borrowers' Series E Preferred Stock in accordance with the terms thereof described in the Prospectus Supplement, defeasances and other payments in respect (iv) redemptions of Junior Financings made the Series C Preferred Stock pursuant to Section 7.13(a)(ivthe exercise of the put rights maintained by the holder of such shares in accordance with the terms of the Dallas Acquisition, (v) scheduled redemptions of the Borrower's Series B Preferred Stock in accordance with the terms thereof as in effect on the date hereof, (vi) the redemption of the MMR Warrants in an amount not to exceed $250,000, (vii) any redemption of up to a 4% minority interest held in ABS, (viii) the repurchase of up to $150,000 of MMR stock options held by Xxxxx Xxxxxx and (ix) up to $25,000,000 in repurchases of the Borrower's stock or warrants, other than any stock specified in clauses (iv) and (iiv) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon above provided that the Total Leverage Ratio as of the last day of any Test Period being is less than 5.0 or equal to 1.0) 4.5 to 1.0 before and (B) the Cumulative Growth Amount;after giving effect thereto.
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to 2. The Credit Agreement is hereby amended by deleting Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts 6.13 therein in its Consolidated Interest Expense by delivering an irrevocable written notice to entirety and inserting in lieu thereof the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).following:
Appears in 2 contracts
Samples: Credit Agreement (SFX Broadcasting Inc), Credit Agreement (SFX Broadcasting Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptexcept :
(a) [reserved];
(i) each Restricted Subsidiary the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests in exchange for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent capital contributions or issuances of new Equity Interests, provided that any terms and provisions material to the Borrower and interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to other Restricted Subsidiaries and the Lenders as those contained in the Equity Interests redeemed thereby, (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Personthe Borrower and (iii) the Borrower may issue, transfer or sell directors’ qualifying shares and shares issued to foreign nationals as required under applicable Law;
(c) the Borrower may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, or contemplated by, the Transaction Agreementi) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the TransactionsTotal Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.40:1.00 and (ii) in connection with, no Event of Default exists or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoresults therefrom;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)), Section 6.19 (other than Section 6.19(j)) or Section 7.08;
(e) repurchases of Equity Interests in the ordinary course of business of the Borrower (or any Restricted Subsidiary Parent Entity) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split, distribution, merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition, (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and/or (iii) may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower and its Restricted Subsidiaries Subsidiaries;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed the Available Amount; provided that with respect to Restricted Payments made in reliance on the Growth Amount, and Holdings may no Event of Default would result therefrom;
(h) the Borrower may, in good faith, pay (or make a corresponding Restricted Payment Payments to allow any direct or indirect parent thereof to pay) for the prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or any Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any Parent Entity) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan, phantom equity plan, or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement and/or any employment, termination or severance agreement or equityholder agreement) with any employee, director, manager, officer or consultant of the Borrower (or any direct or indirect parent thereof), the Borrower or any Restricted Subsidiary; provided that such payments shall not exceed the greater of (x) $40,000,000 and (y) 5.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year (or, after a Qualifying IPO, the greater of (x) $90,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(h) in any calendar year (after giving effect to such carry forward) shall not exceed the greater of (x) $90,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year (or, after the Qualifying IPO, the greater of (x) $180,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period); provided further that, cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower, any Parent Entity or any of the Borrower’s Restricted Subsidiaries (or their respective Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes) in connection with a repurchase of Equity Interests of any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the capital of the Borrower (other than through the issuance of Disqualified Equity Interests), Equity Interests of any parent entity of the Borrower, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any other Parent Entity that occurred after the Closing Date, in each case to the extent not otherwise applied under this Agreement or constituting a Cure Amount; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the Closing Date (including from any Parent Entity to the extent contributed to the Borrower or a Restricted Subsidiary); less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this proviso; provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective controlled investment affiliates or Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees) of the Borrower or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Borrower or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;
(i) the Borrower may make additional Restricted Payments in an amount not to exceed (i) the greater of (x) $295,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period minus (ii) Investments made pursuant to Section 7.02(s)(iii) minus (ii) Restricted Prepayments made pursuant to Section 7.08(d)(ii);
(j) the Borrower may make Restricted Payments to any Parent Entity:
(i) the proceeds of which will be used to pay (A) the tax liability to each relevant jurisdiction in respect of consolidated, combined, affiliated, aggregate, unitary or affiliated returns for similar type of income or similar Tax liabilities of any such parent or (B) if the relevant jurisdiction Borrower is a pass-through entity, the income or similar Tax liabilities of Holdings (or any direct or indirect parent thereof) such owner, in each case, to the extent attributable to the income of Holdings, the Borrower or its Subsidiaries determined as if any of their respective Subsidiaries; provided that no such payments described in clause (A) shall exceed the greater of the Tax liability that would have been imposed on Holdings, the Borrower and its and/or the applicable Subsidiaries had such entities filed separatelyon a (x) stand-alone basis or (y) consolidated, combined, affiliated, aggregate or unitary basis, assuming that the only members of any relevant group are Holdings, the Borrower and/or the applicable Subsidiaries;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s organizational, operating costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax reporting matters) incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) [reserved], (y) fees and expenses (other than such owed to Affiliates) (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(j), ) which are in each case reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes (i) any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other fees, taxes fees and expenses (other than (x) Taxes measured by income and (y) withholding Taxes), required to maintain its be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its: (a) being organized or having Equity Interests outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Borrower or any of the Borrower’s Subsidiaries) or otherwise maintain its direct existence or indirect parents’good standing under applicable law, (b) corporate existencebeing a holding company parent, directly or indirectly, of the Borrower or any Subsidiaries of the Borrower, (c) receiving dividends from or other distributions in respect of the Equity Interests of, directly or indirectly, the Borrower or any Subsidiaries of the Borrower, or (d) having made any payment in respect to any of the items for which the Borrower is permitted to make payments to any Parent Entity pursuant to this Section 7.06;
(iv) if a Holdings Election Event which shall occurbe used to pay customary salary, bonus, severance, indemnity and other benefits payable to employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower or any Parent Entity, including the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(v) to finance any Investment made by such direct or indirect parent that, if made by the Borrower, would be permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.13; provided that for the avoidance of doubt, any such contribution pursuant to be complied with, within the time periods specified therein clause (to the extent required by the Collateral and Guarantee Requirement); and1) above shall not increase any other basket hereunder;
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings to (or any direct or indirect parent thereofA) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement and (B) without duplication, to pay Public Company Costs; and/or
(vii) up to $2,500,000 per calendar year;
(gk) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(jl) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments in an amount necessary to make an “AHYDO” catch-up payment of the Indebtedness and/or Disqualified Equity Interests (including, for the avoidance of doubt, the Preferred Equity) of any Parent Entity;
(m) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with any Investment permitted by Section 7.02 or any consolidation, merger or transfer of assets permitted by Section 7.04;
(n) after a Qualifying IPO, Restricted Payments not to exceed the sum of (x) 6.0% per annum of the net proceeds of such Qualifying IPO received by (or contributed to) the issuance Borrower and its Restricted Subsidiaries from such Qualifying IPO and (y) an aggregate amount per annum not to exceed 5.0% of Qualified the Market Capitalization;
(o) the distribution, by dividend or otherwise, of Equity Interests of an Unrestricted Subsidiary or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary of an Unrestricted Subsidiary (other than any Unrestricted Subsidiaries, all or substantially all the assets which consist of cash and Cash Equivalents);
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lp) the declaration and payment of dividends and distributions other Restricted Payments on the Disqualified Equity Interests incurred in accordance with Section 7.03;
(q) [reserved];
(r) any Restricted Payment made in connection with a Permitted Tax Restructuring;
(s) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants and the vesting of restricted stock and restricted stock units; and
(t) distributions or 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 Permitted Receivables Financing. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 7.06 will not prohibit the consummation of any Receivables Management Subsidiary to holders irrevocable redemption, purchase, defeasance, distribution or other payment within 60 days after the date of minority interests substantially consistent the giving of the irrevocable notice or declaration thereof if at the date of such notice or declaration, such payment would have complied with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)provisions of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided, that, any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or deemed to occur upon the issuance of such Equity Interests in connection with withholding obligations with respect thereto;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower (or any direct or indirect parent thereof) or any Subsidiary; provided, that, such payments do not to exceed, in the aggregate in any calendar year, $5,000,000; provided, that, 100% of any unused portion of the preceding basket for any calendar year may be carried forward to the immediately succeeding calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelymake Permitted Tax Distributions;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g)), in each case, which are reasonable and customary and customary, incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or organizational existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that provided, that, (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger or amalgamation (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;Agreement or related to a Qualifying IPO; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureto the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant not to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by exceed $5,000,000 minus amounts reallocated from this clause (hj) to Sections 7.02(t) and 7.08(a)(iii), ;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the sum Available Amount; provided, that, at the time of any such Restricted Payment (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as no Event of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromtherefrom and (B) if such Restricted Payment is made in reliance on the Available Amount Builder Basket, the LQA Recurring Revenue Leverage Ratio of the Borrower may make additional as of the end of the most recently ended Test Period on a Pro Forma Basis, would be no greater than 0.75:1.00;
(I) after a Qualifying IPO, (i) any Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized Payment by the Borrower or any other direct or indirect parent of the Borrower the proceeds of which will be used to pay listing fees and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (jii) so long as no Default shall have or Event of Default has occurred and be continuing is continuing, Restricted Payments not to exceed up to 6.00% per annum of the Net Cash Proceeds received by (or would result therefrom, contributed to) the Borrower may make and its Restricted Subsidiaries from such Qualifying IPO and (II) Restricted Payments to redeem the Specified Stock solely with the proceeds of Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from a Qualifying IPO or other issuance of Qualified Equity Interests of the Borrower;
(k) if by the Borrower shall become the Subsidiary (or any of Holdings, so long as no Default shall have occurred and be continuing its direct or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16indirect parents); provided, that that, at the time of any such Restricted Payment the LQA Recurring Revenue Leverage Ratio of the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect as of the Indebtedness specified in such notice only so long as end of the most recently ended Test Period on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).greater than 1.00:1.00;
Appears in 2 contracts
Samples: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments the payment of any distribution or other action which the Borrower believes in good faith is necessary either to maintain the Borrower’s status as a real estate investment trust under the Code or to enable the Borrower to avoid payment of any Tax that could be avoided by reason of a distribution or other action by the Borrower, including actions necessary to maintain the pairing arrangement of the Borrower’s Class B common stock with the Parent’s common stock (other than in connection with a voluntary share repurchase by the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBorrower);
(d) the Borrower may make a Restricted Payment with respect to preferred interests issued to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code (“REIT Distribution”) in an amount not exceeding $100,000 per annum in the aggregate;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than Section 7.02(e)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(b) and 7.08(e));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower Subsidiary may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by such Restricted Subsidiary from any future, present or former employee employee, officer, director, manager or director consultant of such Restricted Subsidiary (or the Borrower Borrower) upon the death, disability, retirement or termination of employment of any of its Subsidiaries such Person or pursuant to any employee or director equity plan, employee employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager, director, officer or director consultant of such Restricted Subsidiary (or the Borrower or any of its SubsidiariesBorrower); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fSection 7.06(g) does shall not exceed $10,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to the next succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 year); provided, further, that such amount in any calendar year (which shall increase may be increased by an amount not to $40,000,000 subsequent to exceed the consummation net cash proceeds of a Qualifying IPO)key man life insurance policies received by the Borrower or its Restricted Subsidiaries;
(h) so long as no Default shall have has occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be is continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount not to exceed the FFO Builder Basket on such date;
(i) payments or other transactions pursuant to any Tax-sharing agreement between the Borrower, any Restricted Subsidiary or any other Person with which the Borrower or the Restricted Subsidiary files a consolidated Tax return or with which the Borrower or the Restricted Subsidiary is part of a consolidated group for Tax purposes, provided that, in the case of a Tax-sharing agreement, such payments shall not exceed the amount of the Tax liability that would have been incurred by the Borrower or such Restricted Subsidiary if the Borrower or the Restricted Subsidiary had filed a separate Tax return on a stand-alone basis for the period to which such payment is attributable;
(j) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) if the Borrower shall become the or any Restricted Subsidiary may pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(l) [Reserved];
(m) so long as no Default shall have has occurred and be is continuing or would result therefrom, dividends additional Restricted Payments in an aggregate amount at any time outstanding not to exceed the greater of (x) $300,000,000 and distributions which will be used to fund the payment (y) an amount that would result in an Incremental Loan-to-Value Ratio of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice and the Restricted Subsidiaries as of the last day of the most recently ended Test Period on or prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect date of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromdetermination equal to 5.0%; and
(ln) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Restricted Payments that are made (i) in an amount equal to the extent amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such holder (property or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)assets was financed with Excluded Contributions.
Appears in 2 contracts
Samples: Credit Agreement (ESH Hospitality, Inc.), Credit Agreement (ESH Hospitality, Inc.)
Restricted Payments. Declare or makeNeither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section Section 7.03) of such Person;
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, contingent or potential) with respect theretopurchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.02 (other than Section 7.08(fSections 7.02(e) and (m)), 7.04 or 7.08 (other than Sections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $35,000,000 in any calendar year (which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $60,000,000 in any calendar year or $120,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, officers, members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the greater of (i) $230,000,000 and Holdings (i) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, any costs, expenses and liabilities incurred by the Company in connection with any litigation or arbitration attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iviii) if for any taxable period in which the Borrower and/or any of its Subsidiaries is a Holdings Election Event shall occurmember of a consolidated, combined or similar foreign, federal, state or local income or similar tax group that includes the Borrower and/or its Subsidiaries (a “Tax Group”) and whose common parent is a direct or indirect parent of Borrower, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) the extent such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets income or Equity Interests) to be contributed similar Taxes are attributable to the income of the Borrower or and/or its Restricted Subsidiaries and, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its applicable Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (2) the merger (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in Section 7.04) respect of the Person formed relevant foreign, federal, state or acquired into local income or similar Taxes for such fiscal year had the Borrower or and its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (including its Unrestricted Subsidiaries to the extent required by the Collateral and Guarantee Requirementdescribed above); and
, as applicable, (vA) paid such Taxes separately from any such parent company or (B) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, were the Borrower a taxpayer and parent of a consolidated group and had paid such taxes for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent Unrestricted Subsidiaries to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOextent described above);
(hiv) so long as no Default shall have occurred and be continuing for any taxable period (or would result therefrom, portion thereof) in which the Borrower may make additional Restricted Payments is a partnership or disregarded entity for U.S. federal income tax purposes, payments to the owner or owners of equity of the Borrower in an aggregate amountamount equal to each of the owner’s proportionate share of the Tax Amount. The “Tax Amount” is the Highest Owner Tax Amount divided by such owner’s proportionate economic ownership interest the Borrower. The “Highest Owner Tax Amount” is, together with respect to the aggregate amount applicable owner receiving the greatest proportionate allocation of estimated net taxable income attributable to the Borrower in the applicable tax period (ior portion thereof) prepayments, redemptions, purchases, defeasances and other payments in respect to which such payment relates (as a result of Junior Financings made pursuant to the application of Section 7.13(a)(iv704(c) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hthe Code or otherwise), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as aggregate taxable income of the last day of Borrower allocated to such owner (calculated by excluding the tax consequences resulting from any Test Period being less than 5.0 to 1.0Code Section 743(b) and adjustment) in such applicable taxable period (or portion thereof), multiplied by (B) the Cumulative Growth Amounthighest combined marginal federal, state and/or local income tax rate applicable to an individual residing in California or New York, New York (whichever is higher for the relevant period);
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. /DE)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each non-wholly owned and, in the case of a Restricted Payment by a Restricted Subsidiary may make Restricted Payments that is not wholly-owned directly or indirectly by the Lead Borrower, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings and the Borrower Intermediate Holding Company may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or, to the extent not included in the Available Amount, with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that (i) any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) Holdings, the Borrowers and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson on a ratable basis to its shareholders;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, Holdings, the Borrower Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f7.08(vi);
(e) repurchases of Equity Interests in Holdings, the Borrower Borrowers or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or withholding of shares of restricted stock upon vesting;
(f) the Holdings, any Borrower and its or any Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent thereof) held by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Holdings, any Intermediate Holding Company, any Borrower (or any direct or indirect parent of the Borrowers) or any of their respective Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrowers or any of their Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) attributable shall not exceed (x) $5,000,000 in any calendar year (which shall increase to $10,000,000 subsequent to the consummation of a Qualifying IPO) (with unused amounts in any calendar year being carried over to the immediately two succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to a Borrower, the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Specified Equity Contributions) of Holdings or the Intermediate Holding Company and, to the extent contributed to Holdings or the Intermediate Holding Company, Equity Interests of any of the Borrowers’ direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, the Intermediate Holding Company, the Borrowers, any of their Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date to the extent such Net Cash Proceeds are not utilized in connection with other transactions pursuant to Sections 7.02, 7.06 or 7.12; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings, the Borrowers or their Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); provided, further, that cancellation of Indebtedness owing to Holdings or any Borrower from members of management of Holdings or its such Borrower, any of the Borrowers’ direct or indirect parent companies or any of the Borrowers’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrowers’ direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further, that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (f) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as if of the Borrower Closing Date; provided, further, that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed (x) $30,000,000 in any calendar year (including any amounts carried over) unless both immediately prior to and its Subsidiaries filed separatelyafter giving Pro Forma Effect to such Restricted Payment, the Pro Forma Excess Availability Condition shall have been satisfied;
(iig) Holdings, the Intermediate Holding Company and the Borrowers may make Restricted Payments to any direct or indirect parent of Holdings, the Intermediate Holding Company and the Borrowers:
(i) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of Holdings, the Intermediate Holding Company and the Borrowers attributable to the ownership or operations of Holdings, the Borrower Intermediate Holding Company, the Borrowers and its their respective Subsidiaries);
(ii) the proceeds of which will be used to pay consolidated or combined federal, state or local income Taxes attributable to the income of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries in an amount not to exceed the income Tax liabilities that would have been payable by Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries on a stand-alone basis, reduced by any such income Taxes paid or to be paid directly by Holdings, the Intermediate Holding Company, the Borrowers or their respective Subsidiaries; provided that, in determining the stand-alone income Tax liability of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries, any interest expense of a direct or indirect parent of Holdings, the Intermediate Holding Company and the Borrowers substantially all of whose assets consist (directly or indirectly) of equity and debt of Holdings, the Intermediate Holding Company or the Borrowers, shall be treated as an interest expense of Holdings. the Intermediate Holding Company or the Borrowers, as the case may be;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or so long as its direct or indirect parents directly or indirectly own no other assets than the Equity Interest in Holdings, the Intermediate Holding Company, the Borrowers or any of its their direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings Holdings, the Intermediate Holding Company or the Borrower, as the case may be, shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the a Borrower or its a Subsidiary Guarantor (or, if permitted pursuant to Section 7.02, any other Restricted Subsidiaries Subsidiary) or (2) the merger (to the extent permitted in pursuant to Section 7.04) of the Person formed or acquired into the a Borrower or its a Subsidiary Guarantor (or, if permitted pursuant to Section 7.02, any other Restricted Subsidiaries Subsidiary) in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of Holdings, the Intermediate Holding Company and the Borrowers to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings, the Borrowers and their respective Restricted Subsidiaries;
(gh) Holdings, the Intermediate Holding Company, any Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the Borrower may pay for declaration and payment of dividends following the repurchase, retirement first public offering of Holdings’ or other acquisition any of its direct or retirement for value indirect parent’s common stock after the Closing Date of Equity Interests up to 6.00% per annum of the net proceeds received by or contributed to the Lead Borrower from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted pursuant to Section 7.02, 7.06 or 7.12;
(j) payments made or expected to be made by Holdings, the Intermediate Holding Company, the Borrowers or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, Holdings, the Borrower Intermediate Holding Company and the Borrowers may make additional Restricted Payments (i) in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances loans and other payments in respect advances to any direct or indirect parent of Junior Financings the Borrowers made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hk), not to exceed (x) $10,000,000 or (y) if both immediately prior and after giving Pro Forma Effect to such Restricted Payment the sum Pro Forma Excess Availability Condition shall have been satisfied, $25,000,000 (satisfaction of such condition shall be evidenced by a certificate from the Chief Financial Officer or other financial officer of the Lead Borrower demonstrating such satisfaction calculated in reasonable detail); provided that, such amount shall be increased by (A) $75,000,000 the Net Cash Proceeds of Permitted Equity Issuances (other than Specified Equity Contributions or amounts included in the Available Amount) that are Not Otherwise Applied and (B) the Available Amount that is Not Otherwise Applied, and (ii) (A) to the extent that on a pro forma basis after giving effect to any such amount to be increased to $100,000,000 upon Restricted Payment the Total Leverage Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of any the immediately preceding Test Period being less than 5.0 for which financial statements have been delivered pursuant to 1.0Section 6.01(i) or Section 6.01(ii), is at least 1.25 to 1.0 and (B) if the Cumulative Growth Amount;
(i) so long as Pro Forma Excess Availability Condition has been satisfied both immediately before and immediately after giving Pro Forma Effect thereto and no Default shall have occurred and be continuing or Event of Default exists or would result therefrom;
(l) Holdings and each Restricted Subsidiary may make Restricted Payments, in each case as applicable, to Holdings or any direct or indirect parent of Holdings, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant Borrowers and to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the other Restricted Subsidiaries in order to effectuate any management equity reinvestment and award program as contemplated by the form of refunds or deductions realized in connection subscription agreements with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds applicable members of management of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing Company executed on or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromClosing Date; and
(lm) Holdings and each Restricted Subsidiary may make Restricted Payments, in each case as applicable, to Holdings or any direct or indirect parent of Holdings, the declaration Borrowers and payment of dividends and distributions on to other Restricted Subsidiaries with respect to any Per Share Escrow Payments (as defined in the Equity Interests of any Receivables Management Subsidiary Merger Agreement) to be paid to Persons who, immediately prior to the Effective Time (as defined in the Merger Agreement), were holders of minority interests substantially consistent with past practice to the extent such holder Company Common Stock, Company Stock Options, Company Restricted Shares, Company Performance RSUs and Company RSUs (or its affiliates) participates in each case, as defined in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management SubsidiaryMerger Agreement).
Appears in 2 contracts
Samples: Credit Agreement (Dominion Textile (Usa), L.L.C.), Credit Agreement (Dominion Textile (Usa), L.L.C.)
Restricted Payments. Declare The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to or any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) any member of the Borrower and each Restricted Subsidiary Group may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) Restricted Payments made on the Closing Date to consummate the Transactions;
(e) to the extent constituting Restricted Payments, the Borrower and members of the Restricted Subsidiaries Group may enter into and consummate transactions (i) make any Investment expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e)(v) and 7.02(m)), (ii) transfer assets in respect of the elimination of Equity Interests resulting from the consummation of a merger, dissolution, liquidation or consolidation in accordance with Section 7.04 or 7.08 other than (iii) make transactions permitted by Section 7.08(f7.08(e) or 7.08(j);
(ef) repurchases of Equity Interests in any member of the Borrower or any Restricted Subsidiary Group deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrants;
(fg) any member of the Restricted Group may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any present or former employee, officer, director or consultant thereof or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent thereof to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director or consultant in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) and all loans and advances made pursuant to Section 7.02(m) made in lieu of any such permitted Restricted Payment shall not exceed $30,000,000 in any fiscal year; provided, further, that that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from future, present or former employees, directors, managers or consultants of the Borrower, or any direct or indirect parent of the Borrower or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant, in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings (or may make a corresponding distributions, loans or advances to any direct or indirect parent entity) in an aggregate amount not to exceed the Cumulative Credit immediately prior to the time of the making of such Restricted Payment; provided that, with respect to any Restricted Payment made pursuant to this Section 7.06(h), no Event of Default shall have occurred and be continuing or would result therefrom;
(i) the Borrower may make Restricted Payments (or may make distributions, loans or advances to any direct or indirect parent thereof:) (without duplication):
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofA) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Restricted Subsidiaries and (B) Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) thereof to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or other organizational existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries are a member of a consolidated or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were the only members of a consolidated or similar income tax group of which the Borrower is the common parent (it being understood and agreed that if the Borrower or any Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated or similar taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) reasonable and customary fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) not prohibited by this Agreement that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to make payments permitted under Sections 7.08(e), 7.08(h), and 7.08(j) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);
(j) payments made or expected to be made by any member of the Restricted Group in respect of withholding or other payroll and other similar Taxes payable by any present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the vesting or settlement of other equity-based awards;
(i) any Restricted Payment by the Borrower or any other direct or indirect parent entity of the Borrower to pay listing fees and other costs and expenses directly attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments in an amount not to exceed 6.0% of the aggregate proceeds of the Initial Public Offering in any fiscal year.
(l) Holdings and the Borrower may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of any member of the Restricted Group; provided, however, that any such cash payment shall not be for the purpose of evading the limitations of this Agreement;
(gm) other Restricted Payments provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to the making of such Restricted Payment, the Total Leverage Ratio calculated on a Pro Forma Basis shall not be greater than 5.00:1.00 as of the last day of the most-recently ended Test Period (it being understood that, as a condition precedent to the making of such Restricted Payment, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance);
(n) the Borrower may pay for the repurchasepurchase, retirement redemption or other acquisition or retirement for value of Equity Interests of the Borrower a Qualified Restricted Subsidiary owned by any futurea Strategic Investor if such purchase, present redemption or former employee other acquisition or director retirement for value is made for consideration not in excess of the Borrower or any fair market value of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)such Equity Interests;
(ho) so long as no Default shall have occurred dividends and be continuing or would result therefrom, distributions to the Borrower may extent necessary to enable Parent to make payments pursuant to the Tax Receivable Agreement; and
(p) additional Restricted Payments in an aggregate amount, amount under this clause (p) (together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings Restricted Debt Payments made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v7.13(a)(v)) not to exceed any reduction in taxes realized by the Borrower greater of (a) $100,000,000 million and (b) 32.50% of Consolidated EBITDA for the Restricted Subsidiaries in most recently ended Test Period (calculated on a Pro Forma Basis) at the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time made.
Appears in 2 contracts
Samples: Credit Agreement (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.70 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings 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 or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $29,000,000 in any calendar year (which shall increase to $36,250,000 subsequent to the consummation of the Parent IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $36,250,000 in any calendar year or $72,500,000 subsequent to the consummation of a the Parent IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed, and when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) $25,000,000, plus (y) so long as no Event of Default is continuing, the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph; provided that, if such payment is made from the proceeds of clause (b) of the definition of “Cumulative Credit,” the Fixed Charge Coverage Ratio calculated on a Pro Forma Basis is greater than or equal to 2.00 to 1.00;
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) split or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after the Parent IPO, (i) any Restricted Payment by Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) Holdings and its Restricted Subsidiaries from such Parent IPO plus (B) 2.5% per annum of the Cumulative Growth AmountTotal Market Capitalization of Parent and its Subsidiaries determined at the time of declaration of such Restricted Payment;
(im) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount [reserved];
(together with the aggregate amount of Investments made pursuant to Section 7.02(v)n) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized distributions in connection with the Transactionsmaking of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(jo) so long as the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary); provided that such Restricted Subsidiary owns no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the Borrower;
(k) if the Borrower shall become the Subsidiary primary assets of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromare cash and/or Cash Equivalents); and
(lp) Restricted Payments that are made (i) in an amount equal to the declaration amount of Excluded Contributions previously received and payment that Holdings elects to apply under this clause (p) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of dividends and distributions on property or assets acquired after the Equity Interests Closing Date, if the acquisition of any Receivables Management Subsidiary to holders of minority interests substantially consistent such property or assets was financed with past practice Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 2 contracts
Samples: Credit Agreement (Travelport LTD), Loan Agreement (Travelport LTD)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Original Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts respect of working capital adjustments or purchase price adjustments pursuant to be paid under, or contemplated by, the Transaction Agreement, (iii) in order to satisfy indemnity and other similar obligations under the fees Transaction Agreement and expenses related thereto owed to Affiliates, including any payment (iv) to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO)); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, directors, officers, members of management, or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Original Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise increased the Cumulative Credit;
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $80,000,000 and Holdings 3.00% of Total Assets, in each case, determined at the time such Restricted Payments are made plus (y) if (A) the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.70 to 1.00 and (B) the Secured Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00, the Cumulative Credit at such time; provided, that with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom plus (z) if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00, $80,000,000, in each case, determined at the time the applicable Restricted Payment is made;
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 and Section 7.08 if such parent were subject to such sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gi) payments made or expected to be made by Holdings, the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount equal to 6% the net proceeds received by (together with the aggregate amount of Investments made pursuant to Section 7.02(v)or contributed to) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of from such Qualified Equity Interests of the BorrowerIPO;
(k) if Holdings, the Borrower shall become or any of the Subsidiary Restricted Subsidiaries may pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, so long as no Default shall have occurred and be continuing split or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions combination thereof or any Permitted Acquisition;
(the “l) Restricted Payments Interest Expense Election”) in respect the amount of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromany Excluded Contribution; and
(lm) one or more Restricted Payments that are made with the declaration and payment net cash proceeds of dividends and distributions the 2GIG Disposition; provided that the Total Leverage Ratio on a Pro Forma Basis shall be no more than 5.00 to 1.00 at the Equity Interests time of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent each such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payment.
Appears in 2 contracts
Samples: Credit Agreement (APX Group Holdings, Inc.), Credit Agreement (APX Group Holdings, Inc.)
Restricted Payments. Declare The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to or any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) any member of the Borrower and each Restricted Subsidiary Group may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) Restricted Payments made on the Closing Date to consummate the Transactions;
(e) to the extent constituting Restricted Payments, the Borrower and members of the Restricted Subsidiaries Group may enter into and consummate transactions (i) make any Investment expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e)(v) and 7.02(m)), (ii) transfer assets in respect of the elimination of Equity Interests resulting from the consummation of a merger, dissolution, liquidation or consolidation in accordance with Section 7.04 or 7.08 other than (iii) make transactions permitted by Section 7.08(f7.08(e) or 7.08(j);
(ef) repurchases of Equity Interests in any member of the Borrower or any Restricted Subsidiary Group deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrants;
(fg) any member of the Restricted Group may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any present or former employee, officer, director or consultant thereof or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent thereof to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director or consultant in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) and all loans and advances made pursuant to Section 7.02(m) made in lieu of any such permitted Restricted Payment shall not exceed $30,000,000 in any fiscal year; provided, further, that that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from future, present or former employees, directors, managers or consultants of the Borrower, or any direct or indirect parent of the Borrower or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant, in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings (or may make a corresponding distributions, loans or advances to any direct or indirect parent entity) in an aggregate amount not to exceed the Cumulative Credit immediately prior to the time of the making of such Restricted Payment; provided that, with respect to any Restricted Payment made pursuant to this Section 7.06(h), no Event of Default shall have occurred and be continuing or would result therefrom;
(i) the Borrower may make Restricted Payments (or may make distributions, loans or advances to any direct or indirect parent thereof:) (without duplication):
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofA) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Restricted Subsidiaries and (B) Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) thereof to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or other organizational existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries are a member of a consolidated or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were the only members of a consolidated or similar income tax group of which the Borrower is the common parent (it being understood and agreed that if the Borrower or any Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated or similar taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) reasonable and customary fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by Holdings (or any direct or indirect parent thereof) not prohibited by this Agreement;
(g) Agreement that is directly attributable to the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lvii) the declaration proceeds of which shall be used to make payments permitted under Sections 7.08(e), 7.08(h), and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice 7.08(j) (but only to the extent such holder (payments have not been and are not expected to be made by the Borrower or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Restricted Subsidiary).;
Appears in 2 contracts
Samples: Credit Agreement (Surgery Partners, Inc.), Term Loan Amendment (Surgery Partners, Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments Payment made pursuant to or in connection with the Transaction (including any amounts to be paid under, or contemplated byTransactions and/or in connection with the Tax Matters Agreement, the Transaction Transition Services Agreement) and , any employee matters agreement contemplated by the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of Bankruptcy Plan or other agreement contemplated by the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBankruptcy Plan;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.75 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings 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 or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $40,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i) the greater of $300,000,000 and 3.5% of Total Assets for the Test Period then most recently ended on or prior to the date of such Restricted Payment, and plus (ii) the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph; provided that, solely in the case of any Restricted Payments made in reliance on clause (b) of the definition of the “Cumulative Credit”, no Event of Default under Sections 8.01(a) or (f) has occurred or is continuing, in the case of any Restricted Payments made in reliance of clause (b) of the definition thereof) minus (iv) amounts applied to the prepayment of Junior Financing pursuant to Section 7.13(a)(iv)(1);
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) split or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) any Restricted Payments permitted Payment by this clause Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary;
(h), not m) any Restricted Payment made in connection with paying dividends with respect to exceed the sum declaration and payment by iHeart Operations of cash interest with respect to the iHeart Operations Preferred Stock in an amount up to the greater of (Ax) $75,000,000 and (such amount to be increased to $100,000,000 upon the y) 7.5% of Total Leverage Ratio Assets as of the last day of any the then most recently ended Test Period being less than 5.0 to 1.0of liquidation preference and any accrued unpaid interest or premium thereon or any securities issued as a replacement therefor so long as the terms of such securities do not exceed the greater of (x) $75,000,000 and (By) 7.5% of Total Assets as of the Cumulative Growth Amountlast day of the then most recently ended Test Period in liquidation preference, amount, stated value or principal amount, and are not materially adverse to the Lenders, in their capacity as such, taken as whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower);
(in) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional any Restricted Payments in an amount (together with the aggregate amount of Investments Payment made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends or distributions to any holder of the iHeart Operations Preferred Stock paying for the repayment, repurchase, redemption, defeasance, or otherwise acquire or retire for value of all or any portion of the iHeart Operations Preferred Stock in an amount up to the greater of (x) $75,000,000 and (y) 7.5% of Total Assets as of the last day of the then most recently ended Test Period of liquidation preference or any securities issued as a replacement therefor so long as the terms of such securities do not exceed the greater of (x) $75,000,000 and (y) 7.5% of Total Assets as of the last day of the then most recently ended Test Period in liquidation preference, amount, stated value or principal amount, and are not materially adverse to the Lenders, in their capacity as such, taken as a whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower), together with accrued and unpaid interest or premium thereon to the redemption date thereof, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) related thereto;
(o) distributions in connection with the making of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(p) the distribution, by dividend or otherwise, of Equity Interests of any Receivables Management an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to holders Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of minority interests substantially consistent one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents); and
(q) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and that Holdings elects to apply under this clause (q) or (ii) without duplication with past practice clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 2 contracts
Samples: Credit Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Restricted Payments. Declare The Company shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments ratably with respect to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of its Equity Interests;
(b) the Borrower and each Restricted Subsidiary Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Company may make Restricted Payments Payments; provided that the Borrowers would be in connection Pro Forma Compliance with the Transaction (including any amounts covenants set forth in Section 7.07, in each case such compliance to be paid under, or contemplated by, determined on the Transaction Agreement) basis of the financial information most recently delivered to the Administrative Agent and the fees and expenses related thereto owed Lenders (either pursuant to Affiliates, including Section 6.01(a) or 6.01(b) or in any payment subsequent delivery of financial information by the Company to holders of Equity Interests of the Borrower (immediately Administrative Agent prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretosuch Restricted Payments);
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fe) the Borrower and its Restricted Subsidiaries Company may make Restricted Payments to Holdingscash payments in lieu of issuing fractional shares in connection with the exercise of warrants, and Holdings may make a corresponding Restricted Payment to options or other securities convertible into or exchangeable for Equity Interests of any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)Companies; and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Event of Default shall have occurred and be continuing (or would result therefrom) under Section 8.01(a) or (f), the Borrower Company may make additional Restricted Payments in an aggregate amount, together amount of up to $300,000,000 in any fiscal year of the Company; provided that the Borrowers would be in Pro Forma Compliance with the aggregate amount of (i) prepaymentscovenants set forth in Section 7.07, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (each case such amount compliance to be increased to $100,000,000 upon determined on the Total Leverage Ratio as basis of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice financial information most recently delivered to the Administrative Agent stating that and the Borrower will make such dividends and distributions Lenders (either pursuant to Section 6.01(a) or 6.01(b) or in any subsequent delivery of financial information by the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Company to the extent Administrative Agent prior to such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management SubsidiaryRestricted Payments).
Appears in 2 contracts
Samples: Credit Agreement (Fidelity National Information Services, Inc.), Seventh Amendment and Restatement Agreement (Fidelity National Information Services, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned and, in the case of a Restricted Payment by a Restricted Subsidiary may make that is not Wholly-Owned by the Borrower or one of the Borrower’s Wholly-Owned Restricted Payments Subsidiaries, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower may make Restricted Payments in connection with the Transaction cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (including other than Net Cash Proceeds constituting any Cure Amount or amounts applied to be paid underincur Contribution Indebtedness), or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect except to the Transactionsextent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims Junior Financing Prepayments pursuant to Section 7.14(a) or actions (whether actual, contingent or potential) with respect theretoto make previous Restricted Payments pursuant to this Section 7.06(c);
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e), (n), (t) and (u)), 7.04 or 7.08 other than Section 7.08(f7.08(e), (g) or (p);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to HoldingsHoldings (or, in the case of clause (iv) below, to the shareholders of a Restricted Subsidiary), so long as, with respect to any such Restricted Payments made pursuant to clause (iv), (vii) or (viii) below, no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom:
(i) so long as the Borrower is a member of a consolidated, combined or unitary group of which Holdings may make a corresponding Restricted Payment to (or any direct or indirect parent thereof:
(ientity of Holdings) is the parent for foreign, federal, state, provincial or local income tax purposes, the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which such a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of income tax return is filed by Holdings (or any direct or indirect parent thereofentity of Holdings) attributable to Holdings, that includes the Borrower or and its Subsidiaries determined as if Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) such taxes that would have been payable by the Borrower and its Subsidiaries filed separatelyas a stand-alone group and (B) the actual tax liability of Holdings’ (or any direct or indirect parent entity of Holdings) consolidated, combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not plus customary salary, bonus, severance and other benefits payable to exceed $3,000,000 in current or former directors, officers, managers, employees or consultants (or, solely with respect to benefits, any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent family member thereof) of any such parent company, to the extent such salary, bonuses, severance and other benefits or claims in respect of any of the foregoing are directly attributable and reasonably allocated to the ownership or operations of the Borrower and its Restricted Subsidiaries, (B) insurance premiums to the extent relating to the ownership or operations of the Borrower or any of its Restricted Subsidiaries, and (C) the fees and other amounts described in Section 7.08(d) to the extent that the Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly;
(iii) the proceeds of which shall be used by Holdings to pay (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay its franchise taxes and other fees, similar taxes and other expenses required necessary to maintain its corporate existence;
(iv) the proceeds of which will be used to repurchase the Equity Interests or phantom Equity Interests (including stock appreciation rights and similar incentive or deferred compensation instruments) of Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interests or phantom Equity Interests) from current and former officers, directors, employees, managers or consultants of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in an aggregate amount not in excess of (x) the greater of (x) $7,500,000 and (y) 13.0% of Consolidated EBITDA of the Borrower for the period of four (4) consecutive fiscal quarters most recently ended on or prior to the date of determination for which financial statements have been delivered pursuant to Section 6.01(a) or (b) in any calendar year (which shall increase to the greater of (x) $12,500,000 and (y) 21.0% of Consolidated EBITDA of the Borrower for the period of four (4) consecutive fiscal quarters most recently ended on or prior to the date of determination for which financial statements have been delivered pursuant to Section 6.01(a) or (b) in any calendar year following a Qualifying IPO); provided that the Borrower may carry over and make in any subsequent calendar year or years, in addition to the amount for such subsequent calendar year, the amount not utilized in the prior calendar year or years; provided, further, that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance maintained by Holdings (or its direct or indirect parent), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) to the extent contributed in cash to the common equity of the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s or its direct or indirect parent companies, in each case to officers, directors, employees, managers or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parents’) corporate existenceparent companies that occurs after the Closing Date;
(ivv) the proceeds of which are applied to the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person that, if such purchase or other acquisition had been made by the Borrower, would have constituted a Holdings Election Event shall occur, to finance any Investment “Permitted Acquisition” permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchase or other acquisition;
(vvi) if a to repurchase Equity Interests of Holdings Election Event shall occur, deemed to occur upon the non-cash exercise of stock options and warrants;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, management fees permitted by Section 7.08(d);
(viii) the proceeds of which shall be used by Holdings to pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of Holdings (other than Affiliates that are bona fide investment banks or Debt Fund Affiliates), a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering permitted by any direct or indirect parent of Holdings, in each case directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(ix) the proceeds of which shall be used by Holdings to pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary;
(f) in addition to the foregoing Restricted Payments, additional Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this AgreementSection 7.06(f); provided that (a) immediately before and immediately after giving effect to any such Restricted Payment, no Event of Default shall have occurred and be continuing and (b) solely in the case of Restricted Payments made in reliance on clause (b) of the definition of Cumulative Credit, the Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 6.01(a) or (b) does not exceed 6.00:1.00;
(g) after a Qualifying IPO, Restricted Payments per annum of up to the greater of (x) 6% of the Net Cash Proceeds contributed to the common equity of the Borrower may pay for from such Qualifying IPO and (y) 5% of the repurchasemarket capitalization of the Borrower and its Restricted Subsidiaries; provided that immediately before and immediately after giving effect to any such Restricted Payment, retirement or other acquisition or retirement for value no Event of Default shall have occurred and be continuing;
(h) Restricted Payments (including payments on stock appreciation rights) made in connection with the Transactions and in accordance with the Acquisition Agreement to satisfy any payment obligations owing under the Acquisition Agreement and the payment of any Transaction Costs;
(i) repurchases of Equity Interests of Holdings, the Borrower or any Restricted Subsidiary to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee employee, director, manager or director consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the Borrower or any foregoing) in connection with the exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hj) so long as no Event of Default under Section 8.01 shall have occurred and be continuing or would result therefrom, in addition to the Borrower may make foregoing Restricted Payments, additional Restricted Payments in an aggregate amountamount not to exceed, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made Financing Prepayments pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.14(a)(iv), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount10,000,000;
(ik) in addition to the foregoing Restricted Payments, additional Restricted Payments, so long as as, after giving effect on a Pro Forma Basis to any such Restricted Payment, (x) no Event of Default shall have occurred and be continuing or would result therefrom, therefrom and (y) the Borrower may make additional Restricted Payments in an amount (together with Total Net Leverage Ratio as of the aggregate amount last day of Investments made the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.02(v)6.01(a) or (b) does not exceed 4.75:1.00;
(l) Restricted Payments to exceed any reduction direct or indirect parent entity to make cash payments in taxes realized by lieu of the Borrower and the Restricted Subsidiaries in the form issuance of refunds or deductions realized fractional shares in connection with the Transactionsexercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such parent entity;
(jm) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may repurchase (or make Restricted Payments with to any direct or indirect parent entity to enable it to repurchase) Equity Interests upon the proceeds exercise of options or warrants or other securities convertible into or exchangeable for Equity Interests if such Equity Interests represent all or a portion of the issuance exercise price of Qualified Equity Interests such options or warrants or other securities as part of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the a “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromcashless” exercise; and
(ln) the Borrower or any Restricted Subsidiary may pay any dividend or consummate any redemption within sixty (60) days after the date of the declaration and payment thereof or the provision of dividends and distributions on a redemption notice with respect thereto, as the Equity Interests case may be, if at the date of any Receivables Management Subsidiary to holders of minority interests substantially consistent such declaration or notice, the dividend or redemption notice would have complied with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)provisions hereof.
Appears in 2 contracts
Samples: First Lien Credit Agreement (TGPX Holdings I LLC), First Lien Credit Agreement (TGPX Holdings I LLC)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrower or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any fiscal year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if Subsidiaries; provided that (x) no such payments shall exceed the income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and its Subsidiaries filed separately(y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureto the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) [Reserved];
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromsuch Restricted Payment in an amount in excess of $15,000,000, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(l) the declaration and payment by the Borrower of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Borrower or Holdings following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Borrower in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Epicor International Holdings, Inc.), Credit Agreement (Epicor Software Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Parent Borrower) or 7.08 (other than Section 7.08(f7.08(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Parent Borrower (or of any direct or indirect parent of the Parent Borrower) in connection with any such repurchase, retirement or other acquisition or retirement);
(g) the Parent Borrower may make Restricted Payments to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) its operating costs and expenses incurred in the ordinary course of business and other overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) legal existence;
(iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) or (2) the merger or amalgamation (to the extent not prohibited by Section 7.04) of the Person formed or acquired into the Parent Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) in order to consummate such Permitted Acquisition, in each case, in accordance with the applicable requirements of Section 6.11;
(v) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any equity or debt offering not prohibited by this Agreement (whether or not successful) and directly attributable to the operation of the Parent Borrower and its Restricted Subsidiaries; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries, only to the extent such amounts are deducted, for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, in calculating Consolidated EBITDA for any period;
(h) the Parent Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause Restricted Subsidiaries may (fa) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) pay cash in lieu of Restricted Payments permitted by this clause (h)fractional Equity Interests in connection with any dividend, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of split or combination thereof or any Test Period being less than 5.0 to 1.0) Permitted Acquisition and (Bb) the Cumulative Growth Amounthonor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(i) so long as the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactionswas continuing;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Parent Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, officer, manager or consultant (or any Controlled Investment Affiliate or Immediate Family Member) and any repurchases of Equity Interests in consideration of any Receivables Management Subsidiary to holders such payments including deemed repurchases in connection with the exercise of minority interests substantially consistent with past practice stock options;
(l) in addition to the extent such holder foregoing Restricted Payments and so long as the Payment Conditions have been satisfied, the Parent Borrower may make additional Restricted Payments; and
(or its affiliatesm) participates in the Receivables Management Business (including as a lender or financier under any financing provided other Restricted Payments not to a Receivables Management Subsidiary)exceed $5.0 million.
Appears in 2 contracts
Samples: Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to any other Restricted Subsidiaries and Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and (i) any other Restricted Subsidiary Company and to (ii) each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each any Restricted Subsidiary Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, FNIS may make Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoPayments;
(d) to the extent constituting Restricted Payments, the Borrower FNIS and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f)7.5 and 7.8;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;; and
(f) the Borrower and its Restricted Subsidiaries FNIS may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of cash payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized issuing fractional shares in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing exercise of warrants, options or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified other securities convertible into or exchangeable for Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred FNIS and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Companies.
Appears in 2 contracts
Samples: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Metavante Technologies, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings, the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date the Company delivers an irrevocable written notice to the Administrative Agent stating that the Company will make Restricted Payments in connection with the Transaction (including any amounts to Holdings that are used by Holdings solely to fund cash interest payments required to be paid under, or contemplated bymade by Holdings (the “Holdings Restricted Payments Election”), the Transaction Agreement) and the fees and expenses related thereto owed Company may make such Restricted Payments to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoHoldings;
(d) Restricted Payments made on the Closing Date to consummate the Transaction;
(e) to the extent constituting Restricted Payments, Holdings, the Borrower Company and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(ef) repurchases of Equity Interests in Holdings, the Borrower Company or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings (or the Company after a Qualifying IPO of the Company) may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such parent of Holdings or of the Company after a Qualifying IPO of the Company) by any future, present or former employee or director of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Holdings or any of its Subsidiaries;
(h) the Borrower Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofsuch parent) attributable to Holdings, the Borrower Company or its Subsidiaries determined as if the Borrower Company and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereofof Holdings to pay) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower Company and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a the proceeds of which shall be used by Holdings Election Event shall occur, to make Restricted Payments permitted by Section 7.06(g);
(v) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)6.11; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Company may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii2) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) $75,000,000 200,000,000, (such ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to be increased to $100,000,000 upon Section 8.05) that are Not Otherwise Applied and (iii) if the Total Leverage Ratio as of the last day of any the immediately preceding Test Period being (after giving Pro Forma Effect to such additional Restricted Payments) is 6.25:1 or less, the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied. For the purpose of this Agreement, “Cumulative Excess Cash Flow” means the sum of Excess Cash Flow (but not less than 5.0 to 1.0zero in any period) for the fiscal year ending on December 31, 2006 and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred Excess Cash Flow for each succeeding and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromcompleted fiscal year; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Sungard Data Systems Inc), Credit Agreement (Sungard Data Systems Inc)
Restricted Payments. Declare Each Borrower will not, and will not permit any of its Subsidiaries to, declare, pay or make, directly or indirectly, make any Restricted Payment, exceptPayment other than:
(a) (i) each Restricted Subsidiary may make Restricted Payments made pursuant to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsPayment Conditions;
(b) Restricted Payments to the Borrower other Loan Parties; [PHI Group] Revolving Credit, Term Loan and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;Security Agreement
(c) Restricted Payments in connection with Payment made for the Transaction (including redemption of any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower or any Subsidiary of the Borrower held by any of the Borrower’s (immediately prior or any of its Subsidiaries’) current or former directors or employees (or their transferees, estates or beneficiaries under their estates) pursuant to giving effect any director or employee equity subscription agreement or stock option agreement subject to satisfaction of the TransactionsRestricted Payment Conditions (other than clause (a)(v) of the definition of Restricted Payment Conditions, if applicable); provided that the aggregate price paid for all such redeemed Equity Interests may not exceed $2,500,000 in connection with, or as a result of, their exercise of appraisal rights and the settlement of aggregate in any claims or actions (whether actual, contingent or potential) with respect thereto12-month period;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment in cash to any direct or indirect parent thereof:
of any Borrower (i) other than a direct or indirect parent of PHI Group, if applicable), the proceeds of which will be used by such entity to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting accounting, and similar expenses provided by payable to third parties), which ) that are reasonable and customary and incurred in the ordinary course of businessand, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (that are solely attributable to the extent required by the Collateral Borrowers and Guarantee Requirement)their respective Subsidiaries; and
(ve) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromamong Affiliates constituting Permitted Investments.; and
(lf) the declaration and payment First Amendment Dividend subject to satisfaction of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent conditions set forth in such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)definition.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to any other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and or any such other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on ratably according to their relative ownership interests of the relevant class of Equity InterestsInterests or as otherwise required by the applicable Organization Documents);
(b) the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by to be incurred under Section 7.03) of such Person;
(c) Restricted Payments made pursuant to the Acquisition Agreement (as in effect on the Closing Date) in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(o)), 7.04 (other than a merger or consolidation involving the Borrower) or 7.07 (other than Section 7.07(a), (j) or (k));
(e) repurchases Restricted Payments in respect of the repurchase of Equity Interests in Holdings (or any Parent Entity of Holdings that only owns Equity Interests, directly or indirectly, in the Borrower and its Subsidiaries), the Borrower or any Restricted Subsidiary deemed to that occur upon or in connection with the exercise of stock options or warrants or similar rights if such Equity Interests Restricted Payments represent a portion of the exercise price of such options or warrantswarrants or similar rights or tax withholding obligations with respect thereto;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdingsof Equity Interests in, and Holdings may make a corresponding Restricted Payment to Indebtedness owing from and/or other securities of or Investments in, any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Unrestricted Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity Unrestricted Subsidiaries the assets of which consist solely of cash or debt offering permitted Cash Equivalents received from an Investment by this Agreementthe Borrower and/or any Restricted Subsidiary into it);
(g) the Borrower may pay (or make Restricted Payments to allow Holdings or any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings (or of any Parent Entity) held by any futureManagement Stockholder, present or former employee or director of the Borrower or any of its Subsidiaries including pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription subscription, shareholder or shareholder partnership agreement) with any employee employee, director, consultant or director distributor of the Borrower (or any Parent Entity) or any of its Subsidiaries; provided, however, that the aggregate Restricted Payments made pursuant to this Section 7.06(g) after the Closing Date together with the aggregate amount of payments loans and advances to Holdings made pursuant to Section 7.02(j) in lieu of Restricted Payments permitted by this clause (fg) does shall not exceed exceed:
(i) the greater of (A) 10.00% of Closing Date EBITDA (i.e., $17,460,000) and (B) 10.00% of TTM Consolidated Adjusted EBITDA as of the applicable date of measurement in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOcalendar year, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);years; plus
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), an amount not to exceed the sum cash proceeds of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized key man life insurance policies received by the Borrower and or the Restricted Subsidiaries in after the form of refunds or deductions realized in connection with the Transactions;Closing Date; plus
(jiii) so long as no Default shall have occurred and be continuing or would result therefrom, to the Borrower may make Restricted Payments with extent contributed in cash to the proceeds of the issuance of Qualified common Equity Interests of the Borrower;Borrower and Not Otherwise Applied, the proceeds from the sale of Equity Interests of Holdings or any Parent Entity, in each case to a Person that is or becomes a Management Stockholder that occurs after the Closing Date; plus
(kiv) if the Borrower shall become amount of any cash bonuses or other compensation otherwise payable to any future, present or former Company Person that are foregone in return for the Subsidiary receipt of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness Equity Interests of Holdings permitted by Section 7.16or a Parent Entity, Borrower or any Restricted Subsidiary; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions plus
(the “Restricted Payments Interest Expense Election”v) payments made in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing withholding or would result therefrom; and
(l) the declaration and payment other similar taxes payable upon repurchase, retirement or other acquisition or retirement of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (Holdings or a Parent Entity or its affiliates) participates in the Receivables Management Business (including as a lender Subsidiaries or financier under otherwise pursuant to any financing provided to a Receivables Management Subsidiary).employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement;
Appears in 2 contracts
Samples: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower may make Restricted Payments in connection with the Transaction cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (including other than Net Cash Proceeds constituting any amounts Cure Amount), except to be paid underthe extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately other satisfactions prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement maturity of any claims Junior Financing pursuant to Section 7.13 or actions (whether actual, contingent or potential) with respect theretoto make previous Restricted Payments pursuant to this Section 7.06(c);
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 7.02, 7.04, 7.08 or 7.08 other than Section 7.08(f)7.13;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to HoldingsHoldings (or, in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any such Restricted Payments made pursuant to sub-clause (iv), sub-clause (vii) or sub-clause (viii) below, no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom:
(i) so long as the Borrower is a member of a consolidated, combined or unitary group of which Holdings may make a corresponding Restricted Payment to (or any direct or indirect parent thereof:
(ientity of Holdings) is the parent for foreign, federal, state or provincial or local income tax purposes, the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any direct or indirect parent thereofentity of Holdings) attributable to Holdings, that includes the Borrower or and its Subsidiaries determined as if Subsidiaries, to the extent such tax liability does not exceed the lesser of (x) the taxes that would have been payable by the Borrower and its Subsidiaries filed separatelyas a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of Holdings) consolidated, combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay (a) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 1,500,000 in any fiscal year 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its SubsidiariesRestricted Subsidiaries or (b) the fees and other amounts described in Section 7.08(d) to the extent that the Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly;
(iii) the proceeds of which shall be used by Holdings to pay its (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay franchise taxes and other fees, similar taxes and other expenses required necessary to maintain its corporate existence;
(iv) the proceeds of which will be used to repurchase the Equity Interests or phantom Equity Interests (including stock appreciation rights and similar incentive or deferred compensation instruments) of Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interests or phantom Equity Interests) from directors, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in an aggregate amount not in excess of $20,000,000 in any calendar year; provided, that the Borrower may carry over and make in any subsequent calendar year or years, in addition to the amount for such subsequent calendar year, the amount not utilized in the prior calendar year or years up to a maximum of $20,000,000 with respect to such subsequent calendar year; provided, further, that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance maintained by Holdings (or its direct or indirect parent), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) to the extent contributed in cash to the common equity of the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parents’) corporate existenceparent companies that occurs after the Closing Date;
(ivv) the proceeds of which are applied to the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person that, provided that if such purchase or other acquisition had been made by the Borrower, it would have constituted a Holdings Election Event shall occur, to finance any Investment “Permitted Acquisition” permitted to be made pursuant to Section 7.02; provided provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchase or other acquisition;
(vvi) if a repurchases of Equity Interests of Holdings Election Event shall occur, deemed to occur upon the non-cash exercise of stock options and warrants;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, management fees permitted by Section 7.08(d); and
(viii) the proceeds of which shall be used by Holdings to pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of Holdings (other than Affiliates that are bona fide investment banks), a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering permitted by any direct or indirect parent of Holdings, in each case directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(f) in addition to the foregoing Restricted Payments, additional Restricted Payments following the Third Amendment Effective Date in an aggregate amount not to exceed the sum of (1) an amount (which shall not be less than zero) equal to the greater of $20,000,000 and 1.5% of Consolidated Total Assets; plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this AgreementSection 7.06(f)(2), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied, provided that (in the case of this Section 7.06(f)(2)) immediately before and immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing;
(g) after a Qualifying IPO, Restricted Payments of up to 6% per annum of the Net Cash Proceeds contributed to the common equity of the Borrower may pay for from such Qualifying IPO; provided that immediately before and immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing;
(h) Restricted Payments (including payments on stock appreciation rights) made on the repurchaseClosing Date or within 60 days thereafter, retirement or other acquisition or retirement for value in each case in connection with the Transactions and in accordance with the Acquisition Agreement;
(i) repurchases of Equity Interests of Parent, Holdings, the Borrower or any Restricted Subsidiary to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee employee, director, manager or director consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the Borrower or any foregoing) in connection with the exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hj) in addition to the foregoing Restricted Payments, additional Restricted Payments, so long as as, after giving effect on a Pro Forma Basis to any such Restricted Payment, (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (iiy) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as at the end of the last day most recently ended fiscal quarter of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant for which financial statements are available to Section 7.02(v)) does not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;5.00:1.00; and
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect consisting of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests proceeds of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Disposition permitted under Section 7.05(n), to the extent such holder (or its affiliates) participates made in accordance with the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Acquisition Agreement.
Appears in 2 contracts
Samples: First Lien Credit Agreement (GMS Inc.), First Lien Credit Agreement (GMS Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in respect of working capital adjustments or purchase price or other adjustments and payments and to satisfy indemnity reimbursement and other similar obligations in each case under an acquisition agreement in connection with the Transaction (including any amounts to be paid under, Permitted Acquisition or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoother Permitted Investment;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted (other than by reference to Section 7.06) by any provision of Section 7.04 7.02, Section 7.04, Section 7.07(e) or 7.08 other than Section 7.08(f7.07(m);
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any similar agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed the greater of (x) $3,000,000 and (y) 5.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any calendar year; provided that any unused portion of the preceding basket for any calendar year may be carried forward to the next succeeding calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the consolidated, combined or similar income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) such parent’s income tax group that is attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if Subsidiaries; provided that (x) no such payments shall exceed the income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and its Subsidiaries filed separately(y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose (any such Restricted Payments, a “Tax Distribution”);
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g), ) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.10;
(v) if a Holdings Election Event the proceeds of which shall occurbe used to pay customary costs, fees and expenses (other than to Affiliates (other than Debt Fund Affiliates)) related to any successful or unsuccessful equity or debt offering or amendment thereof permitted or not prohibited by this Agreement;
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) taxes related to any unsuccessful equity restricted stock units held by current or debt offering permitted by this Agreement;former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees); and
(gviii) (A) costs and expenses related to an initial public offering (whether or not such initial public offering was in fact consummated) and (B) after the Borrower may pay for the repurchaseconsummation of Qualifying IPO, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of Public Company Costs,
(h) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of its Subsidiaries declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to any employee or director equity plan, employee or director stock option plan or any this Section 7.06(h) shall be deemed to have utilized capacity under such other employee or director benefit plan or any agreement provision of this Agreement);
(including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hj) so long as no Event of Default shall have occurred and be continuing or would result therefrom , the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed (i) the greater of (x) $12,500,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period minus (ii) the amount of any Investments made pursuant to Section 7.02(t) minus (iii) the amount of any prepayments of Junior Debt made pursuant to Section 7.08(a)(iii); provided that, at the time of any such Restricted Payment, the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.50:1.00.
(k) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional or any Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that at the time of any such Restricted Payment, after giving effect thereto, the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.50:1.00;
(together l) after a Qualifying IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed (x) 6% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualifying IPO;
(m) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) no Event of Default has occurred and is continuing and (ii) the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.50:1.00;
(n) the distribution, by dividend or otherwise, of Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary);
(o) [reserved];
(p) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the aggregate amount exercise of Investments stock options or warrants and the vesting of restricted stock and restricted stock units; and
(q) distributions or payments of fees, sales contributions and other transfers of Receivables Assets and purchases of Receivables Assets pursuant to a Receivables Repurchase Obligation, in each case in connection with a Permitted Receivables Financing. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower shall, in its sole discretion, classify or divide such Restricted Payment (or any portion thereof) in any manner that complies with this covenant and may later divide and reclassify any Restricted Payment (or any portion thereof) so long as the Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception or exceptions as of the date of such reclassification. Any Restricted Payment made pursuant to Section 7.02(v7.06(j)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k), or (m) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided limited to a Receivables Management Subsidiary)dividend, distribution or payment made in cash.
Appears in 2 contracts
Samples: Credit Agreement (KORE Group Holdings, Inc.), Credit Agreement (King Pubco, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (Transactions, including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoassociated therewith;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(ei) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants and (ii) issuances of Equity Interests upon the exercise or conversion of the Warrants in accordance with the Warrant Agreement;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of its Equity Interests of the Borrower held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed $7,750,000 in the aggregate in any calendar year, provided that any unused portion of its Subsidiaries; providedthe preceding basket for any calendar year may be carried forward to succeeding calendar years, however, that so long as the aggregate amount of payments all Restricted Payments made pursuant to this clause (fSection 7.06(f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which after giving effect to such carry forward) shall increase to not exceed $40,000,000 subsequent to 15,500,000 in the consummation of a Qualifying IPO)aggregate;
(g) [reserved];
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the greater of (x) $68,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; provided that, at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, ;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountamount not to exceed, together with the aggregate amount of without duplication, (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and the Available Amount and/or (ii) loans and advances made pursuant to Section 7.02(mthe Excluded Contribution Amount; provided that (x) at the time of any such Restricted Payment in lieu of Restricted Payments permitted by this reliance on clause (h), not to exceed the sum of (Ab) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day definition of “Available Amount,” no Event of Default shall have occurred and be continuing or would result therefrom and (y) at the time of any Test Period being less than 5.0 to 1.0) and (B) such Restricted Payment in reliance on the Cumulative Growth definition of “Excluded Contribution Amount;
(i) so long as ,” no Specified Event of Default shall have occurred and be continuing or would result therefrom;
(l) [reserved];
(m) the distribution, by dividend or otherwise, of Equity Interests or Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so long as the primary assets of such Unrestricted Subsidiary are not cash or cash equivalents;
(n) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount Payments; provided that, at the time of such Restricted Payment, (together with the aggregate amount of Investments made pursuant to Section 7.02(v)i) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have or Event of Default has occurred and be is continuing or would result therefrom, therefrom and (ii) the Total Leverage Ratio of the Borrower may make Restricted Payments with the proceeds as of the issuance of Qualified Equity Interests end of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdingsmost recently ended Test Period, so long as on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromgreater than 2.50:1.00; and
(lo) the declaration and payment of dividends and distributions Borrower or any Restricted Subsidiary may pay any dividend or distribution on the any Disqualified Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent incurred in accordance with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Section 7.03.
Appears in 2 contracts
Samples: Credit Agreement (Holley Inc.), Credit Agreement (Holley Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to (i) the Borrower and any other or Restricted Subsidiary and to (ii) each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) Holdings, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, (x) Holdings may make Restricted Payments in connection with the Transaction (including proceeds received from any amounts Permitted Equity Issuance to be paid under, or contemplated by, the Transaction Agreementextent not required to prepay the Term Loans pursuant to Section 2.05(b) and (y) Holdings may make Restricted Payments with the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests proceeds of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise issuance of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoPermitted Holdco Debt;
(d) Holdings and the Borrower may make Restricted Payments made on the Closing Date to consummate the Acquisition and the other Transactions;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f)7.08;
(ef) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings held by any future, present or former director, officer, member of management, employee or consultant of Holdings or any of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing); provided that the aggregate amount of Restricted Payments made under this clause (g) does not exceed in any calendar year $5,000,000 (with unused amounts in any calendar year being carried over to the two (2) succeeding calendar years); and provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) to directors, officers, members of management, employees or consultants of Holdings or of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing) that occurs after the Closing Date plus (B) the amount of any cash bonuses otherwise payable to directors, officers, members of management, employees or consultants of Holdings or any of its Subsidiaries in connection with the Transaction that are foregone in return for the receipt of Equity Interests of Holdings pursuant to a deferred compensation plan of such Person plus (C) the cash proceeds of key man life insurance policies received by Holdings, the Borrower or its Subsidiaries after the Closing Date (provided that Holdings may elect to apply all or any portion of the aggregate increase contemplated by clauses (A), (B) and (C) above in any calendar year) less (D) the amount of any Restricted Payments previously made pursuant to clauses (A), (B) and (C) of this clause (g);
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 1,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its SubsidiariesRestricted Subsidiaries and (B) its franchise or similar taxes;
(ii) constituting Tax Distributions for so long as the Borrower (A) is treated as a pass-through or disregarded entity for United States federal income tax purposes or (B) is included in a consolidated, combined or unitary tax return filing group of which it is not the parent;
(iii) the proceeds of which shall will be used by Holdings to make Restricted Payments permitted by clause (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceg);
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gvi) the Borrower may proceeds of which shall be used by Holdings to pay for when due (and required to be paid in cash), and in aggregate amounts equal to, accrued and unpaid interest on Permitted Holdco Debt; provided that before and immediately after giving effect to such payment, no Event of Default shall exist or would result from such action; and
(vii) the repurchaseproceeds of which shall be used to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, retirement options or other acquisition securities convertible into or retirement exchangeable for value of Equity Interests of the Borrower or its Restricted Subsidiaries, provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by any futurethe managing board or board of directors, present or former employee or director as the case may be, of the Borrower (or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement authorized committee thereof).
(including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromforegoing Restricted Payments, the Borrower may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 10,000,000 (such amount to be increased to (A) $100,000,000 upon 35,000,000 if the Total Leverage Ratio as of the last day of any Test Period being the immediately preceding four fiscal quarters was less than 5.0 to 1.0) 4.0:1 and (B) $50,000,000 if the Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 3.5:1); provided that such amounts may be increased by an amount equal to 50% of Cumulative Growth Amount;
Excess Cash Flow that is Not Otherwise Applied. For the purpose of this clause (i) so long as no Default shall have occurred and be continuing or would result therefrom), "Cumulative Excess Cash Flow" means the Borrower may make additional Restricted Payments in an amount (together sum of Excess Cash Flow for each fiscal year commencing with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by fiscal year ended February 28, 2005 and ending on the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests last day of the Borrower's most recently ended fiscal year;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 2 contracts
Samples: Credit Agreement (Refco Information Services, LLC), Credit Agreement (Refco Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Parent, and to other Restricted Subsidiaries and of Parent (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Parent and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Parent and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests of such Person (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to Parent and any other than Disqualified Restricted Subsidiary and to each other owner of Equity Interests not otherwise permitted by Section 7.03) of such PersonRestricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement, any Permitted Acquisition or other permitted Investments and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower Parent (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than 7.02(e) and 7.02(m)), Section 7.04 (other than 7.04(g)), 7.05 (other than 7.05(e)(iv) and 7.05(g)) or Section 7.08 (other than 7.08(f), 7.08(g), 7.08(h), and 7.08(m));
(e) repurchases of Equity Interests in the Borrower Parent or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower Parent and its each Restricted Subsidiaries Subsidiary may (i) pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Holdings Equity Interests of such Restricted Subsidiary (or of Parent or any other direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary or Parent (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) make Restricted Payments in the proceeds form of which shall be used by Holdings (distributions to allow Parent or any direct or indirect parent of Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary (or Parent or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or Parent or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to a parent of Parent made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this Section 7.06(f) shall not exceed $6,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $12,000,000 in any calendar year); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”;
(B) Excluded Contributions;
(C) the Net Proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; provided, further, that cancellation of Indebtedness owing to Parent from members of management of Parent, any of Parent’s direct or indirect parent companies or any of Parent’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of Parent or any of Parent’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) so long as no Event of Default has occurred and is continuing or would result therefrom (other than (i) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (a) of the definition thereof, in which case no Event of Default pursuant to Section 8.01(a) or (f) shall have occurred and be continuing or would result therefrom, or (ii) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (c)(i) of the definition thereof), Parent may make Restricted Payments in an aggregate amount not to exceed (x) $25,000,000 plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted Payment made pursuant to clause (y) above, solely to the extent such payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 5.00 to 1.00;
(h) Parent may make Restricted Payments to any direct or indirect parent of Parent:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Parent and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in Transaction Expenses and any fiscal year plus any reasonable fees and customary expenses of and indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Parent and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and or similar Taxes, other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate or limited liability company existence;
(iii) (A) for any taxable period in which Parent and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which Parent is the common parent (a “Tax Group”), to pay the portion of any federal, foreign, state and/or local income taxes of such Tax Group that are attributable to the taxable income of Parent and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Parent and its Subsidiaries would have been required to pay as a stand-alone consolidated, combined or similar income tax group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Parent or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; and (B) for any fiscal quarter in which Parent is treated as a partnership or disregarded entity owned by a partnership for federal income tax purposes, an amount for the immediately preceding fiscal quarter equal to the product of (x) the net taxable income of Parent, if positive, for such immediately preceding fiscal quarter, determined by disregarding any tax basis adjustments under Section 743(b) of the Code and (y) the sum of the maximum federal, state and local income tax rates (including pursuant to Section 1411 of the Code), reduced by any deduction or credit allowable for state and local taxes, and reflecting any reduced rate applicable to any special class of income that is in effect for such immediately preceding fiscal quarter for taxable corporations or individuals (whichever is higher) in any jurisdiction in the United States (any amount permitted to be paid under this Section 7.06(h)(iii), a “Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02Sections 7.02 and 7.08 if such parent were subject to such Sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Parent or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Parent or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionInvestment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 and (C) such contribution shall constitute an Investment by Parent or the applicable Restricted Subsidiaries, as the case may be, at the date of such contribution or merger, as applicable, in an amount equal to the amount of such Restricted Payment;
(v) the proceeds of which (A) shall be complied withused to pay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of any direct or indirect parent company of Parent to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of Parent and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08(e), (i), (j), (k), (l), (m) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementParent or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used to make Restricted Payments to allow any direct or indirect parent of Parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings Parent (or any direct or indirect parent thereof) that is directly attributable to the operations of Parent and its Restricted Subsidiaries;
(i) payments made or expected to be made by Parent, Borrower or any of the Restricted Subsidiaries (or Restricted Payments to allow any direct or indirect parent thereof to make payments) in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases, in each case, in connection with the exercise of stock options;
(j) (i) any Restricted Payment by Parent or any other direct or indirect parent of Parent to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) additional Restricted Payments in an aggregate amount per annum not to exceed $10,750,000;
(k) Parent or any of the Restricted Subsidiaries may pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses cash in lieu of fractional Equity Interests in connection with (other than to Affiliatesx) related to any unsuccessful equity dividend, split or debt offering permitted by this Agreementcombination thereof or (y) any Permitted Acquisition;
(gl) Restricted Payments in the Borrower may pay for the amount of any Excluded Contribution;
(m) any purchase, repurchase, retirement redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Borrower (“Treasury Capital Stock”) or Junior Financing made by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement exchange (including any stock subscription such exchange pursuant to the exercise of a conversion right or shareholder agreement) privilege in connection with any employee or director which cash is paid in lieu of the Borrower issuance of fractional shares) for, or any out of its Subsidiariesthe proceeds of the substantially concurrent sale of, Equity Interests of Parent (other than Disqualified Equity Interests) (“Refunding Capital Stock”) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Equity Interests or through an Excluded Contribution) of Parent; provided, however, that to the aggregate amount extent so applied, the Net Proceeds, or fair market value of payments made pursuant to this property or assets or of marketable securities, from such sale of Equity Interests or such contribution will be excluded from clause (fc) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)Cumulative Amount;
(hn) any Restricted Payments made on the date of consummation of the GEE Acquisition in connection with the Amendment Transactions to fund the redemption of the EMC Parent Preferred Units;
(o) the payment of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of declaration such Restricted Payment would have complied with the provisions of this Agreement; and
(p) so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower Parent or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with unlimited amount so long as the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day end of any the most recent Test Period being less is no greater than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)3.00:1.00.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Global Eagle Entertainment Inc.), Second Lien Credit Agreement (Global Eagle Entertainment Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may pay (or make a corresponding Restricted Payment Payments to allow the Borrower or any other direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Holdings Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) attributable from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to Holdingsany employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $19,500,000 in any calendar year (which shall increase to $37,500,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $32,500,000 in any calendar year or $65,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; plus
(iii) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of any Parent Entity, the Borrower or its Subsidiaries determined as if in connection with the Borrower and its Subsidiaries filed separately;Transactions that are foregone in return for the receipt of Equity Interests; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i), (ii) and (iii) of this Section 7.06(g); provided that, the proceeds Borrower may elect to apply all or any portion of which shall be used the aggregate increase contemplated by Holdings clauses (i), (ii) and (iii) above in any calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower or any of its Restricted Subsidiaries from any future, present or former employees, directors, officers, members of management or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members), of the Borrower, any Restricted Subsidiary, any direct or indirect parent thereofcompany of the Borrower or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $32,500,000 and 2.125% of Total Assets, plus (y) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, if such payment is made from the proceeds of clause (b) of the definition of “Cumulative Credit,”: (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is greater than or equal to 4.00 to 1.00;
(i) the Borrower may make Restricted Payments to a Parent Entity:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) in amounts required for any Parent Entity 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 Restricted Subsidiaries or, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in respect of the relevant foreign, federal, state or local income or similar taxes for such fiscal year had the Borrower, its Restricted Subsidiaries and/or its Unrestricted Subsidiaries (to the extent described above), as applicable, (A) been liable for such taxes separately from any such parent company or (B) if the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, been a taxpayer and parent of a consolidated group (or otherwise liable for the taxes of its Subsidiaries) and had paid such taxes for the Borrower, its Restricted Subsidiaries and/or its Unrestricted Subsidiaries (to the extent described above), provided further, that no payment may be made pursuant to both this subclause (iii) and subclause (iv) of this clause (i) with respect to any period;
(iv) if for so long as Borrower is classified as a Holdings Election Event shall occurpartnership or disregarded entity for U.S. federal income tax purposes, with respect to each fiscal year, distributions to each owner in amounts not to exceed the federal, state and local income tax liability of such owner attributable to the taxable income of the Borrower and its Restricted Subsidiaries for such fiscal year (as determined based on such assumptions as may be made by the board of directors of Borrower, including, without limitation, an assumption that all such owners are subject to the highest combined federal, state and local tax rates applicable to the income of individuals or corporations, resident of New York, New York, whichever is higher) provided further, that no payment may be made pursuant to both this subclause (iv) and subclause (iii) of this clause (i) with respect to any period;
(v) to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(vi) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Borrower or any Parent Entity to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvii) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent Parent Entity thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementBorrower (or any Parent Entity thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) if the Borrower shall become or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (ii) Restricted Payments not to exceed up to 6% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO;
(m) the Borrower may pay any dividends or distributions within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(n) [reserved];
(o) the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary); provided that such Restricted Subsidiary owns no assets other than Equity Interests of Holdings, so long as no Default shall have occurred an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents);
(p) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected elects to include such amounts apply under this clause (p) or (ii) without duplication with clause (i), in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in such notice only so long as no Default shall have occurred and be continuing or would result therefromeach case, to the extent Not Otherwise Applied; and
(lq) payments and distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger, amalgamation or transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole that complies with the terms of this Agreement.
(r) to pay interest and/or principal (including AHYDO “catch-up payments”) on Indebtedness the proceeds of which have been contributed to the Borrower or any Restricted Subsidiary in cash as common equity (or other equity reasonably acceptable to the Administrative Agent); provided that (i) the declaration principal amount of such Indebtedness shall increase Consolidated Total Debt on a dollar-for-dollar basis, (ii) all interest expense relating to such Indebtedness shall (x) reduce Consolidated Net Income and payment (y) increase Consolidated Interest Expense, in each case on a dollar-for-dollar basis, and (iii) such contribution of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)equity shall be disregarded for all purposes hereunder.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) additional Restricted Payments; provided (x) the Restricted Payment Conditions are satisfied and (y) Restricted Payments made in reliance on this Section 7.06(d) are not made from the proceeds of Revolving Credit Loans;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.02 (other than Section 7.08(fSections 7.02(e) and (m)), 7.04, 7.07 (other than Sections 7.07(e) and (j)) or 7.10;
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make retirement or other acquisition or retirement for value of Equity Interests of a corresponding Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower (or any direct or indirect parent thereof:
of the Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (iincluding any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings Borrower (or any direct or indirect parent thereof) attributable or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to Holdingsthis clause (g) shall not exceed $20,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $30,000,000 in any calendar year or $60,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Borrower net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries determined as if or any of its direct or indirect parent companies that occurs after the Borrower and its Subsidiaries filed separately;Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of which shall be used key man life insurance policies received by Holdings the Borrower or its Restricted Subsidiaries; less
(or iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(iii) (x) the greater of (i) $50,000,000 and (i) 30% of LTM Consolidated EBITDA, plus (y) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make Restricted Payments to any direct or indirect parent thereofof the Borrower:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and similar Taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) (A) to the extent such parent is the parent of a consolidated, combined, or similar foreign, federal, state or local or similar tax group of which the Borrower and/or its Subsidiaries are members, the proceeds of which will be used by such parent to pay the Tax liability for such tax group that includes the Borrower and/or its Subsidiaries that is attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that (i) such Tax liability shall not exceed the amount that the Borrower and/or its Subsidiaries would have been required to pay in respect of the relevant foreign, federal, state or local income or similar Taxes for such fiscal year had the Borrower and its Subsidiaries paid such Taxes separately from any such parent company as a standalone consolidated, combined, or similar foreign, federal, state or local income or similar tax group, less any amounts paid directly by the Borrower and its Subsidiaries with respect to such taxes and (ii) any payments attributable to the income of Unrestricted Subsidiaries shall be permitted only to the extent that cash payments were made for such purpose by the Unrestricted Subsidiaries to the Borrower or its Restricted Subsidiaries, or (B) with respect to any taxable year (or portion thereof) ending after the Closing Date for which the Borrower is treated as a pass through entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, the payment of dividends or distributions to any member or partner of the Borrower in an amount such that the members or partners (or their direct or indirect members or partners, if applicable) receive, in the aggregate for such period, payments or distributions not to exceed the product of (x) the taxable income of the Borrower for such taxable year or portion thereof and (y) the highest combined marginal U.S. federal, state, and local income tax rates (including any tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation, resident in New York, New York (for the avoidance of doubt, regardless of the actual rate applicable to any member or partner), determined (w) by taking into account (1) any U.S. federal, state, and/or local (as applicable) cumulative taxable losses of the Borrower for any prior taxable years ending after the Closing Date for which the Borrower was a pass through entity to the extent such losses are of a character that would allow such losses to be available to reduce income in the current taxable period (taking into account any limitations on the utilization of such loss to reduce such income and to the extent such loss had not already been utilized), (2) the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income and (3) any adjustment to the Borrower’s taxable income as a result of any tax examination, audit, or adjustment with respect to any period or portion thereof, (x) by not taking into account the application of Section 199A of the Code, (y) without duplication of any amounts paid directly by the Borrower and its Subsidiaries with respect to taxes of such members or partners and (z) by permitting payments attributable to the income of Unrestricted Subsidiaries only to the extent that cash payments were made for such purpose by the Unrestricted Subsidiaries to the Borrower or its Restricted Subsidiaries (any such Restricted Payment permitted under this clause (iii), a “Permitted Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionInvestment (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to pay customary salary, bonus and in each caseother benefits payable to directors, officers and employees of Holdings, the Borrower shall cause or any direct or indirect parent company of the requirements of Section 6.11 to be complied with, within the time periods specified therein (Borrower to the extent required by such salaries, bonuses, indemnity and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) of the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementsuch parent (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and the Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon or retirement for value in connection with the exercise or vesting of Equity Interests of the Borrower by or any other equity award with respect to any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant (or their respective Controlled Investment Affiliates and Immediate Family Members) and any repurchases of Equity Interests in consideration of such payments including in connection with the exercise or vesting of stock options, warrants or the issuance of restricted stock units or similar stock based awards;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Investment permitted under Section 7.02 and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of the Borrower or any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hl) after a Qualified IPO and so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 7.00% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 7.00% of Market Capitalization;
(m) [reserved];
(n) payments or distributions to dissenting stockholders pursuant to applicable law (including in taxes realized by the Borrower connection with, or as a result of, exercise of appraisal rights and the Restricted Subsidiaries in the form settlement of refunds any claims or deductions realized action (whether actual, contingent or potential)), pursuant to or in connection with the Transactionsa consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or Section 7.04;
(jo) so long as no Default shall have occurred and be continuing the distribution, by dividend or would result therefromotherwise, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets) or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower elects to apply under this clause (p) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the Borrower shall become acquisition of such property or assets was financed with Excluded Contributions, in each case, to the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund extent Not Otherwise Applied;
(q) the payment of interest and fees on Indebtedness any dividend or other distribution or the consummation of Holdings permitted by Section 7.16; provided, that any irrevocable redemption within 60 days after the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect date of declaration of the Indebtedness specified in such notice only so long dividend or other distribution or the giving of the redemption notice, as no Default shall the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have occurred and be continuing or would result therefromcomplied with the provisions of this Agreement; and
(lr) the declaration and payment of dividends and distributions on Borrower may pay, make or issue, as applicable, the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Dividend Recapitalization.
Appears in 2 contracts
Samples: Credit Agreement (Apria, Inc.), Credit Agreement (Apria, Inc.)
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company, and to other Restricted Subsidiaries and of the Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.00:1.00;
(e) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, director, member, partner, independent contractor or consultant stock option plan or benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $37,500,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company or any Subsidiary Guarantor, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors, members, partners, independent contractors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of Equity Interests of the Company or any of its direct or indirect parent companies pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) through (iii) of this Section 7.06(g);
(h) the Company may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i), when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (a) $200,000,000 and Holdings (b) 3.50% of Total Assets plus (ii) the Cumulative Credit on such date; provided that, in the case of clause (ii), with respect to usage of any portion of the Builder Basket, no Event of Default under Sections 8.01(a) or (f) has occurred and is continuing (or would result therefrom);
(i) the Company may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay the its operating or organizational costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Company and its Restricted Subsidiaries, any costs, expenses and liabilities incurred in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Company and its SubsidiariesRestricted Subsidiaries and listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.11, within (C) such parent company and its Affiliates (other than the time periods specified therein (Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent required the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall be deemed to be made by the Collateral and Guarantee RequirementCompany or such Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p); and);
(v) if a the proceeds of which shall be used to pay customary salary, bonus, severance, indemnity and other benefits payable to future, present or former officers, employees, managers, members, partners independent contractors or consultants of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement by Holdings (or any direct or indirect parent thereof), whether or not successful, that is directly attributable to the operations of the Company and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for Company or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon exercise or retirement for value vesting of Equity Interests of the Borrower by any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant of the Borrower Company or any Restricted Subsidiaries and any repurchases of its Subsidiaries pursuant Equity Interests deemed to any employee occur upon the exercise or director equity planvesting of stock options, employee warrants or director the issuance of restricted stock option plan units or any other employee or director benefit plan or any agreement (including any similar stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)based awards;
(hk) so long as no Default shall have occurred and be continuing the Company or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptionsdistribution, purchasessplit, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day of any Test Period being less net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than 5.0 to 1.0a public sale constituting an Excluded Contribution) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 6.0% of Market Capitalization;
(m) distributions or payments of Securitization Fees, sales, contributions, distributions and other transfers of Securitization Assets and purchases of Securitization Assets, in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized each case in connection with the Transactionsa Qualified Securitization Financing;
(jn) so long payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as no Default shall have occurred a result of, exercise of appraisal rights and be continuing the settlement of any claims or would result therefromaction (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02;
(o) the Borrower may make Restricted Payments with the proceeds distribution, by dividend or otherwise, of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the BorrowerCompany or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, Restricted Payments that the Borrower shall have elected to include such amounts are made (i) in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that amount of Excluded Contributions previously received since the Borrower will make such dividends and distributions Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business (including as event that a lender Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Company may, in its sole discretion, classify or financier under later divide, classify or reclassify all or a portion of such Restricted Payment or any financing provided portion thereof in a manner that complies with this Section 7.06 and will only be required to a Receivables Management Subsidiary)include the amount and type of such Restricted Payment in one or more of the above clauses.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);
(g) the Borrower may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.75:1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant per annum equal to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 25,000,000 plus (such amount B) an amount, if any, equal to be increased to $100,000,000 upon (w) if the Total Leverage Ratio as of on a Pro Forma Basis after giving effect to the last day payment of any Test Period being less such Restricted Payment, is no greater than 5.0 3.50 to 1.01.00, an unlimited amount, (x) if the Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 4.00 to 1.00 and greater than 3.50 to 1.00, the greater of (a) $95,000,000 and (Bb) 7.50% of Market Capitalization, (y) if the Cumulative Growth Amount;Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 4.50 to 1.00 and greater than 4.00 to 1.00, $95,000,000 and (z) if the Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 5.00 to 1.00 and greater than 4.50 to 1.00, $65,000,000; and
(ik) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 2 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings and to other another Restricted Subsidiaries and Subsidiary that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any such other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonPerson (for the avoidance of doubt, any Restricted Subsidiary may declare and make such dividend payment or distribution paid in Equity Interests to Holdings);
(c) Holdings may make Restricted Payments in connection with the Transaction (including any amounts cash proceeds contributed to be paid under, or contemplated by, its common equity from the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement Net Cash Proceeds of any claims or actions (whether actualPermitted Equity Issuance Not Otherwise Applied, contingent or potential) so long as, with respect theretoto any such Restricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom;
(d) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions take actions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Sections 7.02(e) and (n)), 7.04, 6.18 or 7.13 (in each case, other than by reference to this Section 7.08(f7.06 (or any clause under this Section 7.06));
(e) repurchases of Equity Interests in the Borrower or Holdings and any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofParent Holding Company:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings Parent Holding Company to pay (or any direct to make a Restricted Payment to or indirect parent thereofInvestment in another Parent Holding Company to enable it to pay) to pay (a) such Parent Holding Company’s operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) attributable Parent Holding Company not to exceed the ratable share of the amount to which such Restricted Payment relates that is related to the ownership or operations of Holdings or the Borrower Restricted Subsidiaries or (b) to pay such fees and other amounts directly;
(ii) for any taxable period for which Holdings or any of its Subsidiaries are members of a consolidated, combined, unitary, affiliated or similar income Tax or VAT group of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), the portion of any income Taxes (and any consolidated, combined, unitary, affiliated or similar franchise or similar Taxes imposed in lieu of such income Taxes of such Tax Group) or VAT due by the parent company of the relevant Tax Group for such taxable period, that is attributable to Holdings and/or its applicable Subsidiaries, provided that (A) Restricted Payments under this Section 7.06(e)(ii) for any taxable period shall not exceed the amount of such Taxes that Holdings and/or such Subsidiaries, as applicable, would have paid had Holdings and/or such Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) and (B) Restricted Payments under this Section 7.06(e)(ii) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Holdings or any of the Restricted Subsidiaries for such purpose;
(iii) the proceeds of which shall will be used to repurchase, retire or otherwise acquire the Equity Interests of Parent Holding Company, Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to or an Investment in another Parent Holding Company or a direct or indirect equity holder thereof to enable it to repurchase, retire or otherwise acquire its Equity Interest) from directors, managers, consultants, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in each case in connection with the resignation, termination, death or disability of any such directors, managers, employees or members of management, in an aggregate amount not in excess of the greater of (x) $50,000,000 and (y) 1.0% of Consolidated Total Assets in any calendar year (with unused amounts in any calendar year being permitted to be carried over for succeeding calendar years); provided further that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance received by Holdings (or a Parent Holding Company), the Parent Borrower or any direct or indirect parent thereofother Restricted Subsidiary (solely with respect to the calendar year in which such proceeds are received and without limiting any carry-over thereof permitted above), plus (B) to pay franchise taxes the extent contributed in cash to the common equity of Holdings or any Restricted Subsidiary and other feesnot theretofore utilized to make a Restricted Payment under this clause (e)(iv), taxes and expenses required the Net Cash Proceeds from the sale of Equity Interests of Holdings or any Parent Holding Company, in each case to maintain its (members of management, managers, directors or consultants of Holdings or any of its Subsidiaries or any Parent Holding Company that occurs after the Closing Date (provided that in no event shall any such contributed amounts increase the Cumulative Credit) plus (C) the amount of any cash bonuses or other cash compensation otherwise payable to any future, present or former director, manager, employee, member of management or consultant of Holdings or a direct or indirect parents’) corporate existenceequity holder thereof, Parent Borrower or any other Restricted Subsidiary that are foregone in return for the receipt of Equity Interests of Holdings or a direct or indirect equity holder thereof, Parent Borrower or any other Restricted Subsidiary pursuant to a deferred compensation plan of such equity;
(iv) the proceeds of which are applied to the purchase or other acquisition by any Parent Holding Company of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or more than 50% of the Equity Interests in a Person that; provided that if such purchase or other acquisition had been made by Holdings or any Restricted Subsidiary, it would have constituted a Holdings Election Event shall occur, to finance any Investment Permitted Acquisition permitted to be made pursuant to Section 7.027.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings any Parent Holding Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary (other than (i) with respect to such assets, to any Foreign Subsidiaries of the U.S. Borrower and (ii) to the extent such Equity Interests constitute Foreign Subsidiaries, to the U.S. Borrower or any of its Restricted Subsidiaries Subsidiaries) or (2) the merger (to the extent permitted in Section 7.04) into any Restricted Subsidiary (other than the U.S. Borrower or any of its Subsidiaries to the extent constituting a Foreign Subsidiary) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchaser or other acquisition;
(v) if repurchases of Equity Interests of a Holdings Election Event shall occur, Parent Holding Company deemed to occur upon the non-cash exercise of stock options and warrants or similar equity incentive awards;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) a Parent Holding Company to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof Parent Holding Company to pay) , other than to Affiliates of Holdings, a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings or offering or debt offering issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement, in each case not to exceed the ratable share of the amount to which such Restricted Payment relates that is directly related to the operations of Holdings and the Restricted Subsidiaries;
(gvii) the Borrower may proceeds of which shall be used to pay for customary salary, bonus and other benefits payable to officers, employees, consultants and independent contractors of any Parent Holding Company to the repurchaseextent such salaries, retirement bonuses and other benefits are attributable to the ownership or other acquisition operation of Holdings or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; providedand
(f) in addition to the foregoing Restricted Payments, however, that the Borrowers may make additional Restricted Payments to a Parent Holding Company in an aggregate amount not to exceed (1) the greater of $400,000,000 and 6.0% of Consolidated Total Assets (less the aggregate amount of payments made all prepayments, redemptions, purchases, defeasements and other satisfaction prior to the scheduled maturity of Junior Financing and Permitted Refinancings thereof pursuant to Section 7.13(iv)) plus (2) an amount (which shall not be less than zero) equal to the portion, if any, of the Cumulative Credit on the date of such election that the applicable Borrower elects to apply to this clause (f) does not exceed Section 7.06(f)(2), such election to be specified in any fiscal year a written notice of a Responsible Officer of the Borrower $15,000,000 Representative calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that, in the case of this Section 7.06(f)(2), (which shall increase A) immediately before and immediately after giving Pro Forma Effect to $20,000,000 subsequent to the consummation any such Restricted Payment, no Event of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromand (B) immediately after giving effect to any such Restricted Payment, the Borrower Parties would be permitted to Incur at least $1.00 of unsecured Permitted Additional Debt;
(g) [reserved];
(h) Holdings and any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional shares in connection with any dividend, redemptions, purchases, defeasances and other payments in respect split or combination of Junior Financings made pursuant to Section 7.13(a)(ivits Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion;
(i) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 7.06;
(j) the Borrower Parties may make Restricted Payments permitted by this clause (h), to a Parent Holding Company so that Parent Holding Company may make Restricted Payments to its equity holders or the equity holders of any other Parent Holding Company in an aggregate amount not to exceed exceeding the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day Net Cash Proceeds received by the Borrower Parties from any public offering of common stock or contributed to the Borrower Parties by any direct or indirect parent of any Test Period being less than 5.0 to 1.0) Borrower Party from any public offering of common stock and (B) the Cumulative Growth Amountan aggregate amount per annum not to exceed 7.0% of Market Capitalization;
(ik) so long as no Default shall have occurred Holdings and be continuing or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an amount equal to any Taxes payable, including, but not limited to, withholding or similar Taxes payable or expected to be payable, in connection with any payments to any present or former employee, director, officer, manager, consultant or independent contractor (together or their respective Affiliates, estates or immediate family members) or in connection with the aggregate amount any repurchases, of Investments made pursuant to Section 7.02(v)) not to exceed any reduction Equity Interests in taxes realized by the Borrower and the Restricted Subsidiaries in the form consideration of refunds or deductions realized such payments including deemed repurchases in connection with the Transactionsexercise of stock options or grant, vesting or delivery of any Equity Interests;
(jl) additional Restricted Payments so long as no Default shall have occurred and be continuing or would result therefromafter giving Pro Forma Effect to such Restricted Payments, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromTotal Net Leverage Ratio does not exceed 3.00:1.00; and
(lm) the declaration and payment of dividends and or distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) of Holdings; provided, however, that (A) for the most recently ended Test Period, at the Borrowers’ option, either (I) the Fixed Charge Coverage Ratio of Holdings and its Restricted Subsidiaries is 2.00 to 1.00 or greater or (ii) the Total Net Leverage Ratio does not exceed 5.50 to 1.00 and (B) the aggregate amount of dividends declared and paid pursuant to this clause (m) does not exceed the Net Cash Proceeds actually received by Holdings from the sale of Designated Preferred Stock; provided, further, that for purposes of calculating the Total Net Leverage Ratio for purposes of compliance with past practice clause (ii) above, Consolidated Funded Indebtedness shall include the aggregate amount of all outstanding Designated Preferred Stock of Holdings, with the amount of such Designated Preferred Stock equal to the extent greater of its voluntary or involuntary liquidation preference and Maximum Fixed Repurchase Price, in each case determined on a consolidated basis in accordance with GAAP, based on internal financial statements that are available immediately preceding such holder (or its affiliates) participates in the Receivables Management Business (including as date and calculated on a lender or financier under any financing provided to a Receivables Management Subsidiary)Pro Forma Basis.
Appears in 2 contracts
Samples: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrower or any Subsidiary; provided that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise and excise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gvi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay (A) withholding taxes imposed in connection with the Shareholder Loans or (B) Canadian tax liability attributable to net interest income earned on the Shareholder Loans net of interest expense on loans made pursuant to the Holdings Credit Agreement which is deductible pursuant to paragraph 20(1)(c) of the Canadian Income Tax Act.
(h) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the Borrower or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or other acquisition the common stock (or retirement for value equivalent thereof) of any direct or indirect holders of Equity Interests in the Borrower after the Closing Date, of up to 6.5% per annum of the Net Cash Proceeds received by or contributed to the Borrower in or from any such public offering to the extent such Net Cash Proceeds are Not Otherwise Applied;
(k) the Borrower or any Restricted Subsidiary may make Restricted Payments in an amount equal to withholding or similar Taxes payable or expected to be payable by any future, present or former employee employee, director, manager or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) so long as no Default shall have occurred and be continuing or would result therefrom, [Reserved];
(m) [Reserved];
(n) the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings the Shareholder Loans and Holdings Loans made pursuant to Section 7.13(a)(iv7.09(a) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hn), not to exceed the sum of (i) (A) $75,000,000 (such amount to be increased to $100,000,000 upon 15,000,000 at all times when the Total Senior Secured Leverage Ratio as of the last day of any Test Period being less is greater than 5.0 to 1.0) and 4.00:1.00, or (B) $25,000,000 when the Cumulative Growth Amount;Senior Secured Leverage Ratio is less than or equal to 4.00:1.00, in each case determined on a Pro Forma Basis for the Restricted Payment, (ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances that are Not Otherwise Applied and (iii) the Available Amount that is Not Otherwise Applied; and
(o) (i) so long as no Default shall have occurred and be continuing or would result therefromafter the fourth anniversary of the Closing Date, the Borrower may make additional Restricted Payments pay dividends to Holdings in an amount (together with equal to regularly scheduled interest on the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) Holdings Loans accruing after such fourth anniversary, so long as (x) Holdings uses the proceeds of such dividends to pay such interest and (y) no Event of Default shall have occurred and be continuing exists at the time of such dividends or would result therefrom(ii) at any time, the Borrower may make Restricted Payments with pay dividends to Holdings to finance interest payments on the proceeds of the issuance of Qualified Equity Interests of Shareholder Loans if such payments are funded from additional shareholder loans from Holdings to the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Samples: Second Lien Credit Agreement (SMART Technologies Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:except (subject to the proviso in Section 7.02(m)):
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments with respect to any class or type of Equity Interests, to (i) the Parent Borrower and any other or such Restricted Subsidiary and (ii) to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant such class or type of Equity Interests);
(b) the Parent Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Parent Borrower and the Restricted Subsidiaries may make Restricted Payments necessary to consummate the Merger and the other Transactions;
(d) to the extent constituting Restricted Payments, transactions expressly permitted by Section 7.02 (other than Section 7.02(e), (m) and (r)), Section 7.04, or Section 7.05 (other than Section 7.05(e));
(e) the Parent Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings:
(i) the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) the Tax liability for each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns filed by or on behalf of Holdings or any direct or indirect parent thereof; provided that such proceeds are limited to the Tax liability attributable to the income of the Parent Borrower and/or those Subsidiaries or the Equity Interests of the Parent Borrower held by Holdings, if any, that are part of the applicable tax group; and provided, further, that any payments attributable to the income of Unrestricted Subsidiaries shall be permitted only to the extent that cash payments were made for such purpose by the Unrestricted Subsidiaries to the Parent Borrower or its Restricted Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) such entities’ operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 (or $4,000,000 following a Qualifying IPO) in any fiscal year of the Parent Borrower plus any reasonable and customary indemnification claims made by directors or officers of Holdings or any direct or indirect parent thereof attributable to the ownership or operations of Holdings, the Parent Borrower and the Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings or any direct or indirect parent thereof;
(iv) the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any future, present or former employee, director, officer, member of management or consultant of Holdings or any direct or indirect parent thereof, or any of its Subsidiaries (or any Controlled Investment Affiliate or Immediate Family Member thereof); provided that the aggregate amount of Restricted Payments made under this clause (e)(iv) does not exceed in any calendar year $5,000,000 (with unused amounts in any calendar year being carried over to the two (2) immediately succeeding calendar years, subject to a maximum of $10,000,000 in any calendar year); and provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings to employees, directors, officers, members of management or consultants of Holdings or any direct or indirect parent thereof or of its Subsidiaries that occurs after the Original Closing Date to the extent such proceeds constitute Eligible Equity Proceeds plus (B) the amount of any cash bonuses otherwise payable to employees, directors, officers, members of management or consultants of Holdings or any direct or indirect parent thereof or any of its Subsidiaries (or any Controlled Investment Affiliate or Immediate Family Member thereof) in connection with the Transaction Transactions that are foregone in return for the receipt of Equity Interests (including other than Disqualified Equity Interests) of Holdings or any amounts direct or indirect parent thereof pursuant to a deferred compensation plan of such Person plus (C) the cash proceeds of key man life insurance policies received by Holdings or any direct or indirect parent thereof (to the extent such proceeds are contributed to the Parent Borrower), the Parent Borrower or any Restricted Subsidiary after the Original Closing Date (provided that the Parent Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (A), (B) and (C) above in any calendar year) less (D) the amount of any Restricted Payments previously made pursuant to clauses (A), (B) and (C) of this clause (e)(iv);
(v) to finance any Investment permitted to be paid undermade pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment and (B) Holdings or the applicable parent company thereof shall, immediately following the closing or contemplated byconsummation thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Transaction AgreementParent Borrower or a Loan Party other than Holdings (or a Person that will become a Loan Party (other than Holdings) and upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Parent Borrower or a Loan Party (other than Holdings) in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12;
(vi) the proceeds of which shall be used by Holdings to make (or to make a payment to any direct or indirect parent of Holdings to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any direct or indirect parent thereof; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors or the managing board, as the case may be, of the Parent Borrower (or any authorized committee thereof));
(vii) the proceeds of which shall be used by Holdings or any direct or indirect parent thereof to pay fees and expenses related thereto owed (other than to Affiliates) related to any unsuccessful equity or debt offering not prohibited by this Agreement (in the case of any such parent or indirect parent, only to the extent such parent or indirect parent does not hold material assets other than those relating to the Parent Borrower and its Subsidiaries or their respective businesses);
(viii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent thereof to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Parent Borrower and the Restricted Subsidiaries; and
(ix) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) amounts of the type described in Sections 7.08(g) or 7.08(i), in each case to the extent the applicable payment would be permitted under the applicable clause in Section 7.08 if such payment were to be made by a Borrower Party and in lieu of such payment being made under such applicable clauses of Section 7.08;
(f) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Parent Borrower and the Restricted Subsidiaries may make Restricted Payments in an aggregate amount that does not exceed the sum of (i) $15,000,000 (reduced on a dollar for dollar basis by any use of this Section 7.06(f)(i) reallocated to prepayments of Junior Financings pursuant to Section 7.13(i)) and (ii) the Cumulative Amount as in effect immediately prior to the time of making of such Restricted Payment; provided that, in the case of any Restricted Payment under this clause (f) made with the Cumulative Amount, the Borrower Parties shall be in Pro Forma Compliance with the covenant set forth in Section 7.10 (whether or not such covenant is then in effect) and a Total Leverage Ratio of not greater than 4.75 to 1.0 as of the end of the Test Period then last ended, in each case, after giving effect to such Restricted Payment, and the use of proceeds thereof;
(g) repurchases of Equity Interests in Holdings (or any direct or indirect parent company), the Parent Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(h) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including any deemed repurchases in connection with the exercise of stock options;
(i) Vesting Payments in an aggregate amount not to exceed $25,000,000 and (ii) payment to holders of Equity Interests of the Parent Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;to the Transactions; and
(dj) to cash payments in lieu of fractional shares in connection with the extent constituting Restricted Paymentsexercise of warrants, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 options or 7.08 other than Section 7.08(f);
(e) repurchases of securities, convertible or exchangeable for Equity Interests in the of Parent Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds company of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Parent Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; provided that to the extent required pursuant to the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (d);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings or any direct or indirect parent thereof by any future, present or former employee or director of the Borrower or any of its Restricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Related Persons) upon the death, disability or termination of employment of such persons or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its SubsidiariesRestricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Related Persons); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fe) does not exceed in any fiscal year of after the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOClosing Date, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together when combined with the aggregate amount of all cash payments (iwhether principal or interest) prepayments, redemptions, purchases, defeasances and other payments made by the Borrower in respect of Junior Financings made any promissory notes pursuant to Section 7.13(a)(iv7.03(j) after the Closing Date, shall not exceed $1,000,000;
(f) the Borrower and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of its Restricted Subsidiaries may make Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;Holdings:
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower which shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used by Holdings to fund the payment of interest pay franchise taxes and fees on Indebtedness of Holdings permitted by Section 7.16; providedother fees, that the Borrower shall have elected taxes and expenses required to include such amounts in maintain its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromcorporate existence; and
(lii) of up to $[ ], per year, the declaration and payment proceeds of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary which shall be used to holders of minority interests substantially consistent with past practice by Holdings to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)pay corporate overhead expenses.
Appears in 1 contract
Samples: Restructuring Support Agreement (Station Casinos Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section Section 7.03) of such PersonPerson (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments in connection with the Transaction made (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactionsi) in connection with, respect of working capital adjustments or as a result of, their exercise of appraisal rights purchase price adjustments pursuant to any Permitted Acquisition or other permitted Investment and the settlement of (ii) in order to satisfy indemnity and other similar obligations under any claims Permitted Acquisition or actions (whether actual, contingent or potential) with respect theretoother permitted Investment;
(d) to the extent constituting Restricted Payments, the Borrower (or Pubco) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(o) and 7.02(l)) or Xxxxxxx 0.00 (xxxxx xxxx 0.00(x), (x), (x), (x), (x), (x) and (m));
(e) Restricted Payments made on the Funding Date to consummate the Transactions;
(f) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may (i) pay (or make Restricted Payments to Holdingsallow any direct or indirect parent of the Borrower to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager, consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) or advisor of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any direct or indirect parent of the Borrower to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager, consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) or advisor of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer, manager, consultant, advisor or other service provider of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) together with the aggregate amount of loans and Holdings may make a corresponding Restricted Payment advances to any direct or indirect parent thereofof the Borrower made pursuant to Section 7.02(l) in lieu of Restricted Payments permitted by this Section 7.06(g) (net of proceeds received by any direct or indirect parent of the Borrower subsequent to the Funding Date in connection with resales of any Equity Interests so purchased pursuant to this clause (g)) shall not exceed the amount set forth in the applicable employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) as of the Signing Date plus $2,500,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar year) ; provided, further, that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed, the Cumulative Credit at such time; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) solely to the extent such Restricted Payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 3.50 to 1.00;
(i) the Borrower may make Restricted Payments to Pubco and any other direct or indirect parent (or, in the case of clause (iii) below, any equity holder) of the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting accounting, management, consulting or monitoring and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Pubco or the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in Transaction Expenses and any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of Pubco or the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;; and
(iviii) if a Holdings Election Event shall occurwithout duplication, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income or similar taxes of such Restricted Payment Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone consolidated, combined or similar income tax group; provided, further, that the permitted payment pursuant to this clause (iii)(A) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be made substantially concurrently limited to the amount actually paid with the closing of respect to such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes (B) to satisfy additional Taxes of the direct and indirect holders of Equity Interests in the Borrower that are payable as a result of the operation of Section 2.05(b)(iv) and (v), and (C) as long as the Borrower is treated as a pass-through entity for U.S. federal income Tax purposes, to pay an amount equal to the product of (1) the highest combined tax rate (including all applicable federal, state and local tax rates with reference to income, and taking into account the deductibility (including applicable limitations on deductibility) of state and local income taxes for federal income tax purposes) applicable to any direct or indirect holder of Equity Interests of the Borrower and (2) the merger taxable income of the Borrower and its Subsidiaries allocable to holders of Equity Interests of the Borrower (or their Affiliates) (calculated without regard to (i) any adjustments pursuant to Section 734 or 743 of the Code or (ii) (without duplication) deduction or offset attributable to the tax basis of an asset that constitutes real property or other tangible and intangible property eligible for cost recovery pursuant to Section 167 or 197 of the Code to the extent permitted in Section 7.04) that such deduction or offset is relevant to the determination of payments under Article III of the Person formed Tax Receivable Agreement), as determined on a quarterly basis or acquired into such more frequent basis as any such Taxes would be required to be paid for any taxable period (and, without duplication, after the end of any taxable year after a final determination of the amount of Taxes for such period determined pursuant to this clause (C)); provided, that if the aggregate amount distributable for a taxable period pursuant to clause (C) (as finally determined pursuant to clause (C)) is less than the aggregate amount previously distributed for such taxable period, then the amount distributable for the immediately succeeding taxable period (and if necessary, subsequent taxable periods) shall be reduced (but not below zero) by the amount of such excess;
(iv) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Pubco or any direct or indirect parent company of Pubco to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Pubco; the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Borrower or its a Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee RequirementSubsidiary); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Pubco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementPubco (or any direct or indirect parent thereof);
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legates or distributes of any of the Borrower foregoing) and any repurchases of Equity Interests in consideration of such payments and deemed repurchases in connection with the exercise of stock options;
(k) Restricted Payments in an aggregate amount per annum not to exceed an amount equal to 6.0% the net proceeds received by (or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreementcontributed to) with any employee or director of the Borrower or any of and its Subsidiaries; provided, however, that Restricted Subsidiaries from the aggregate IPO Transaction and other primary equity issuance;
(l) Restricted Payments in the amount of payments made any Excluded Contribution;
(m) Pubco, the Borrower and any Restricted Subsidiary may pay dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration, such payment would have complied with another provision of Section 7.06;
(n) Restricted Payments so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 3.00 to 1.00;
(o) Restricted Payments for direct or indirect distributions to the Founder for the Founder’s employment compensation, provided that any distribution pursuant to this clause (fo) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) excess of $30,000,000 in any calendar year (which 5,000,000 annually shall increase to $40,000,000 subsequent to have been approved by the consummation Borrower’s board of a Qualifying IPO)directors or similar governing body;
(hp) Restricted Payments, not to exceed $10,000,000, made with the proceeds from the sale or distribution of equity and/or assets of Flo, LLC and/or with proceeds thereof; provided that any Restricted Payments made in reliance on this clause (p) shall be made no later than six months after the Funding Date; and
(q) Restricted Payments to fund payment obligations described in Section 7.03(i) if the promissory notes described therein are issued by Pubco or another parent company of the Borrower; and
(r) so long as no Default shall have or Event of Default has occurred and be is continuing (or would result therefromfrom), the Borrower may make additional Restricted Payments (including loans or advances) in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), outstanding at any time not to exceed $2,500,000 annually. For the sum avoidance of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of doubt, any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing dividend or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made distribution otherwise permitted pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries this Section 7.06 may be in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on a loan; provided that Indebtedness of Holdings a Loan Party or Restricted Subsidiary must be otherwise permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Section 7.03.
Appears in 1 contract
Samples: Credit Agreement (OTG EXP, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other the Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Closing Date to consummate the 2008 Transaction (including any amounts or on the Amendment Effective Date to be paid underconsummate the Transactions, or contemplated by, on or after the Transaction Agreement) and Amendment Effective Date to consummate the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto2011 Reorganization;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee, director, officer, consultant or distributor (or any Controlled Investment Affiliate or Immediate Family Member of any of the foregoing) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any future, present or former employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer, consultant or distributor of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and its interest payable on any notes issued by the Parent Borrower (or of any direct or indirect parent of the Parent Borrower) in connection with any such repurchase, retirement or other acquisition or retirement); provided, further, that the cancellation of Indebtedness owing to the Parent Borrower from any future, present or former employees, directors, officers, managers, or consultants of the Parent Borrower (or their respective Controlled Investment Affiliate or Immediate Family Member), any direct or indirect parent company of the Parent Borrower or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Parent Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this or any other provision of this Agreement;
(g) the Parent Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in not prohibited by Section 7.04) of the Person formed or acquired into the Parent Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted not prohibited by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries;
(gh) the Parent Borrower or any of the Restricted Subsidiaries may (i) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within sixty (60) days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries in respect of withholding or similar taxes payable by any future, present or former employee employee, director, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Parent Borrower may make additional Restricted Payments in an aggregate amount, together with amount not to exceed the sum of (i) (x) the greater of $40,000,000 and 3.0% of Total Assets minus (y) the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(i)(D)(1) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate outstanding amount of Investments made pursuant to Section 7.02(v7.02(o)(iii)) not to exceed any reduction , in taxes realized by each case determined at the Borrower time of such Restricted Payment, and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(kii) if the Borrower shall become Senior Secured Leverage Ratio calculated on a pro forma basis for such Restricted Payment for the Subsidiary of Holdingsmost recently ended Test Period does not exceed 3.0 to 1.0, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include Available Amount at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 1 contract
Samples: Credit Agreement (Axcan Intermediate Holdings Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments Payment made pursuant to or in connection with the Transaction (including Transactions and/or in connection with the Tax Matters Agreement, the Transition Services Agreement, any amounts to be paid underemployee matters agreement contemplated by the Bankruptcy Plan, or other agreement contemplated by, by the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBankruptcy Plan;
(d) [reserved];
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings 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 or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $40,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and net cash proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i) the greater of $100,000,000 and 10.0% of Consolidated EBITDA for the Test Period most recently ended on or prior to the date of such Restricted Payment, and plus (ii) the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph, minus (iii) amounts applied to the prepayment of Junior Financing pursuant to Section 7.13(a)(iv)(1);
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) Holdings or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) any Restricted Payment by Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary;
(m) any Restricted Payment made in connection with paying dividends with respect to the declaration and payment by iHeart Operations of cash interest with respect to the iHeart Operations Preferred Stock in an amount up to $60,000,000 of liquidation preference and any accrued unpaid interest or premium thereon or any securities issued as a replacement therefor so long as the terms of such replacement securities do not exceed $60,000,000 in liquidation preference, amount, stated value or principal amount and are not materially adverse to the Lenders, in their capacity as such, taken as whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower);
(n) [reserved];
(o) distributions in connection with the making of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(p) the distribution, by dividend or otherwise, of Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents);
(q) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and that Holdings elects to apply under this clause (q) or (ii) without duplication with clause (i), in an amount equal to the net cash proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the Borrower shall become acquisition of such property or assets was financed with Excluded Contributions, in each case, to the Subsidiary of Holdingsextent Not Otherwise Applied; and
(r) Restricted Payments, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees Payment Conditions are satisfied on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Pro Forma Basis.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) (i) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Parent Borrower) or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower and may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, consultant or distributor of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries;
(g) the Parent Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Parent Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries;
(gh) the Parent Borrower or any of the Restricted Subsidiaries may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as the Payment Conditions have been satisfied, the Parent Borrower may make additional Restricted Payments;
(m) beginning on the fifth anniversary of the date of issuance of any Qualified Holding Company Debt so long as no Default shall have has occurred and be continuing or would result therefromis continuing, the Parent Borrower may make additional pay dividends to Holdings so long as the proceeds thereof are promptly applied to fund cash interest payments or “AHYDO catch-up” payments on Qualified Holding Company Debt, so long as on a Pro Forma Basis after giving effect to the payment of such dividends, the Senior Secured Leverage Ratio for the most recently ended Test Period would not be greater than 4.5 to 1.0; and
(n) other Restricted Payments in an aggregate amountthat, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v7.02(aa) and payments made pursuant to Section 7.12(a)(i)(E)) , do not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of aggregate at any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time outstanding $75,000,000.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.039.3) of such Person;
(c) the Borrower may make Restricted Payments in connection with the Transaction (including any amounts to Holdings to be paid underused by Holdings solely to comply with its payment obligations under the Term Facility Credit Documentation and/or under any other documentation evidencing Indebtedness permitted to be incurred by Holdings pursuant to Section 9.13, in each case, so long as, with respect to any such Restricted Payments made in order to pay or contemplated byprepay principal in respect of such Indebtedness, such payment or prepayment would be permitted pursuant to Section 9.11 hereof (to the Transaction Agreementextent constituting Junior Financing) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of or Section 9.14 hereof if the Borrower (immediately prior to giving effect to was the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretodirect obligor under such Indebtedness;
(d) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 9.2 (other than Section 7.08(f9.2(e)), 9.4 (other than a merger or consolidation of Holdings and the Borrower) or 9.8 (other than Section 9.8(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or similar rights;
(f) [reserved];
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, Holdings (or to Parent and Holdings may make a corresponding Restricted Payment to any other direct or indirect parent thereof:of Holdings):
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow Parent and any other direct or indirect parent of Holdings to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or Parent or any other direct or indirect parent thereofof Holdings) attributable that includes the activities of the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group with the Borrower the regarded corporate parent of the group and (B) the actual tax liability of Holdings’, Parent’s or such other direct or indirect parent’s consolidated, combined, unitary or affiliated group, reduced by any such taxes paid or to be paid directly by the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by to pay (or to make Restricted Payments to allow Parent or any direct parent of Parent to pay) the operating costs and expenses of Holdings (or Parent or any other direct or indirect parent thereofof Holdings) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its Holdings’ (or Parent’s or any of its direct or indirect parents’parent of Holdings) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.029.2; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Parent, Holdings and the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.049.4) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied withSections 8.11, within the time periods specified therein (to the extent required by the Collateral 8.12 and Guarantee Requirement); and9.2;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gvi) the proceeds of which (A) shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings (or Parent) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower may and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 9.8(p) (but, in the case of this clause (B), only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary), or (C) shall be used to make payments permitted under Section 9.8(h); and
(vii) the proceeds of which shall be used to pay for the withholding or other similar taxes payable upon repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any futureHoldings, present a Parent Entity or former employee or director of the Borrower or any of its Subsidiaries or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement agreement;
(including h) Holdings, the Borrower or any stock subscription or shareholder agreement) of the Restricted Subsidiaries may pay cash in lieu of fractional Equity Interests in connection with any employee dividend, split or director combination thereof or any Permitted Acquisition;
(i) [reserved];
(j) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options and (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options;
(k) [reserved];
(l) [reserved];
(m) the Borrower may (or may make Restricted Payments to permit any Parent Entity to) (i) redeem, repurchase, retire or otherwise acquire in whole or in part any Equity Interests of the Borrower or any Restricted Subsidiary or any Equity Interests of its Subsidiaries; providedany Parent Entity (“Treasury Equity Interests”), howeverin exchange for, that or with the aggregate amount of payments made pursuant proceeds (to this clause (fthe extent contributed to Holdings or the Borrower substantially concurrently) does not exceed in any fiscal year of the Borrower $15,000,000 sale or issuance (which shall increase to $20,000,000 subsequent other than to the consummation of a Qualifying IPOBorrower or any Restricted Subsidiary) of, with unused amounts in any calendar year being carried over other Equity Interests or rights to succeeding calendar years subject to a maximum acquire its Equity Interests (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv“Refunding Equity Interests”) and (ii) loans declare and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day pay dividends on any Treasury Equity Interests out of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromproceeds; and
(ln) the declaration and payment redemptions in whole or in part of dividends and distributions on the any of its Equity Interests for another class of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice its Equity Interests (other than Disqualified Equity Interests, except to the extent such holder (or its affiliates) participates in issued by the Receivables Management Business (including as a lender or financier under any financing provided Borrower to a Receivables Management Restricted Subsidiary) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (other than Disqualified Equity Interests, except to the extent issued by the Borrower to a Restricted Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) : each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) ); the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
Person (c) and, in the case of such a Restricted Payments in connection with Payment by a non-wholly owned Restricted Subsidiary, to the Transaction (including Borrower and any amounts other Restricted Subsidiary and to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the Borrower relevant class of Equity Interests); Restricted Payments made (immediately prior i) on the Closing Date to giving effect consummate the Transactions, (ii) in respect of working capital adjustments or purchase price adjustments pursuant to the TransactionsAcquisition Agreement or the Split Brands Acquisition Agreement and (iii) in connection with, order to satisfy indemnity and other similar obligations under the Acquisition Agreement or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) Split Brands Acquisition Agreement; to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l);
(e) ); repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
; the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) shall not exceed $35,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $70,000,000 in any calendar year); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed: amounts used to increase the Cumulative Credit pursuant to clause (d) of the definition of “Cumulative Credit”; the Net Proceeds of key man life insurance policies received by the Borrower and or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided, further, that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $85,000,000110,000,000 and Holdings 30.0% of Consolidated EBITDA for the most recently ended Test Period, plus (y) the Cumulative Credit at such time; the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:
(i) of the proceeds of which will be used Borrower: to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iii) ; the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
; for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (iva “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) if a Holdings Election Event with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall occurbe limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 and Section 7.08 if such parent were subject to such sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11; the proceeds of which (A) shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (i) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(v) if a Holdings Election Event shall occur, and the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
Holdings (gor any direct or indirect parent thereof) that is directly attributable to the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower and its Restricted Subsidiaries; payments made or expected to be made by Holdings, the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases, in each case, in connection with the exercise of stock options; Holdings, the Borrower or any of its the Restricted Subsidiaries pursuant to may pay cash in lieu of fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan Permitted Acquisition or any agreement (including any stock subscription or shareholder agreement) with any employee or director vesting of Equity Interests; Restricted Payments in the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause any Excluded Contribution; and any Restricted Payment, so long as (fA) does not exceed in any fiscal year of the Borrower $15,000,000 (which Payment Condition shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without be satisfied after giving effect to the following provisosuch Restricted Payment, (B) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromfrom such Restricted Payment and (C) if requested by the Administrative Agent, the Borrower may make additional Restricted Payments shall have provided a certificate of a Responsible Officer of Borrower as to the satisfaction of the conditions in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of foregoing clauses (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Samples: Abl Credit Agreement (Prestige Consumer Healthcare Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptexcept :
(a) [reserved];
(i) each Restricted Subsidiary the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests in exchange for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent capital contributions or issuances of new Equity Interests, provided that any terms and provisions material to the Borrower and interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to other Restricted Subsidiaries and the Lenders as those contained in the Equity Interests redeemed thereby, (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Personthe Borrower and (iii) the Borrower may issue, transfer or sell directors’ qualifying shares and shares issued to foreign nationals as required under applicable Law;
(c) the Borrower may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, or contemplated by, the Transaction Agreementi) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the TransactionsTotal Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.40:1.00 and (ii) in connection with, no Event of Default exists or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoresults therefrom;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)), Section 6.19 (other than Section 6.19(j)) or Section 7.08;
(e) repurchases of Equity Interests in the ordinary course of business of the Borrower (or any Restricted Subsidiary Parent Entity) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split, distribution, merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition, (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and/or (iii) may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower and its Restricted Subsidiaries Subsidiaries;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 the Available Amount; provided that with respect to Restricted Payments made in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers reliance on the Growth Amount, no Event of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its SubsidiariesDefault would result therefrom;
(iiih) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesBorrower may, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occurin good faith, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it or any direct or indirect parent thereof held by any future, present or former employee employees, directors, officers, managers, members, partners, independent contractors or director consultants (or any Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any Parent Entity) or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan plan, phantom equity plan, or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement and/or any employment, termination or severance agreement or equityholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower (or any direct or indirect parent thereof), the Borrower or any of its SubsidiariesRestricted Subsidiary; provided, however, provided that the aggregate amount of such payments made pursuant to this clause (f) does shall not exceed in any fiscal year the greater of (x) $40,000,000 and (y) 5.0% of Consolidated EBITDA of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any the most recently ended Test Period being less than 5.0 to 1.0in any calendar year (or, after a Qualifying IPO, the greater of (x) $90,000,000 and (By) 15.0% of Consolidated EBITDA of the Cumulative Growth Amount;Borrower as of the last day of the most recently ended Test Period), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(h) in any calendar year (after giving effect to such carry forward) shall not exceed the greater of (x) $90,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year (or, after the Qualifying IPO, the greater of (x) $180,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period); provided further that, cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower, any Parent Entity or any of the Borrower’s Restricted Subsidiaries (or their respective Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes) in connection with a repurchase of Equity Interests of any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower may make additional Restricted Payments in an amount (together with and, to the aggregate amount extent contributed to the capital of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of other than through the issuance of Qualified Disqualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of HoldingsInterests), so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary parent entity of the Borrower, in each case to holders members of minority interests substantially consistent with past practice management, directors or consultants of the Borrower, any of its Subsidiaries or any other Parent Entity that occurred after the Closing Date, in each case to the extent such holder (not otherwise applied under this Agreement or its affiliates) participates in the Receivables Management Business (including as constituting a lender or financier under any financing provided to a Receivables Management Subsidiary).Cure Amount; plus
Appears in 1 contract
Restricted Payments. Declare The Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Lead Borrower, and to other Restricted Subsidiaries and of the Lead Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Lead Borrower (or any Parent) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Lead Borrower or any Restricted Subsidiary of the Lead Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, or warrantswarrants or other equity-based awards;
(f) the Lead Borrower and each Restricted Subsidiary may (i) pay (or may make Restricted Payments to allow any Holdco or any Parent to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Lead Borrower or any other such Parent) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any other Parent) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any Holdco or any Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any Parent) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholder’s agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Lead Borrower or any Parent) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $30,000,000 in any calendar year; provided, further, that unused amounts in any calendar year may be used in the next two succeeding years; provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(i) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”; and
(ii) the Net Proceeds of key man life insurance policies received by the Lead Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that that cancellation of Indebtedness owing to the Lead Borrower or any Restricted Subsidiary from members of management of the Lead Borrower, any of the Lead Borrower’s Parents or any of the Lead Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Lead Borrower’s Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Lead Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $125,000,000 and 4.25% of Total Assets, as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(vi)) plus (y) the Cumulative Credit at such time (provided that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrowers, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Lead Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:Parent;
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such Parent attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its Parents’) corporate existence or (B) costs and expenses (including Public Company Costs) incurred by such Parent in connection with such Parent being a public company, including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the Sxxxxxxx-Xxxxx Act of 2002;
(iii) for any taxable period in which the Lead Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income or similar tax group of which a direct or indirect parents’) corporate existence;
parent of Lead Borrower is the common parent (iv) if a Holdings Election Event shall occur“Tax Group”), to finance pay federal, foreign, state and local income or similar taxes of such Tax Group that are attributable to the taxable income of the Lead Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were corporations paying taxes separately from any Investment Tax Group at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if the Lead Borrower or Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided further that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes for such taxable period or any previous taxable period ending after the date hereof and not previously taken into account for purposes of calculating the limitation in this proviso;
(iv) to finance any Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 made by the Lead Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such Parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Lead Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of any Holdco or any Parent and any payroll, social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g) and (k) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementLead Borrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Holdco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementany Holdco (or any Parent) that is directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by any Holdco (or any Parent);
(gi) payments made or expected to be made by any Holdco, the Lead Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchases of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity-based awards;
(j) so long as no Default shall have occurred and be continuing dividends on the common stock or would result therefrom, the Borrower may make Restricted Payments with the proceeds common equity interests of the issuance of Qualified Equity Interests Lead Borrower or any Parent in an aggregate amount per annum not to exceed an amount equal to 6% of the Borrowernet proceeds received by (or contributed to) the Lead Borrower from any Qualified IPO (including the Initial Public Offering);
(k) if the Lead Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of the issuance of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisitions; and
(l) additional Restricted Payments so long as immediately after giving effect to such Restricted Payment, (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the declaration Total Net Leverage Ratio calculated on a Pro Forma Basis is no greater than 2.00 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Lead Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Samples: Credit Agreement (Trinseo S.A.)
Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments (i) to the Borrower and to other Restricted Subsidiaries and (ii) each in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; provided that no Restricted Payment of the type described in preceding clause (ii) shall be made at any time an Event of Default has occurred and is continuing;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; provided that to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (c);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fd) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdco by any future, present or former employee employee, manager or director of the Borrower or any of its Restricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Affiliates) upon the death, disability or termination of employment of such persons or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager or director of the Borrower or any of its SubsidiariesRestricted Subsidiaries (other than the Xxxxxxxx Brothers or any of their Affiliates); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fd) does after the Closing Date, when combined with the aggregate amount of all cash payments (whether principal or interest) made by the Borrower in respect of any promissory notes pursuant to Section 7.03(h) after the Closing Date, shall not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)10,000,000;
(he) the Borrower and its Restricted Subsidiaries may make Restricted Payments to the Holding Companies:
(i) the proceeds of which shall be used by a Holding Company to pay franchise taxes and other fees, taxes and expenses required to maintain its limited liability company existence; and
(ii) of up to $2,500,000 per year (in the aggregate with any loans and advances made to the Holding Companies pursuant to Section 7.02(m) in reliance on this clause (e)(ii)), the proceeds of which shall be used by the Holding Companies to pay corporate overhead expenses;
(f) in addition to the foregoing Restricted Payments and so long as (i) no Default shall have occurred and be continuing or would result therefrom, (ii) immediately after giving effect thereto the Borrower may make additional and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, (iii) with respect to Restricted Payments made using the Restricted Payment Base Basket, the Required Incurrence Interest Coverage Ratio shall be greater than 2.00:1.00 (as determined on a Pro Forma Basis after giving effect to such Restricted Payments), and (iv) with respect to Restricted Payments made using the Restricted Payment Builder Basket, the First Lien Leverage Ratio (as determined on a Pro Forma Basis after giving effect to such Restricted Payments) shall be less than or equal to 4.50:1.00, with the compliance under the preceding clauses (ii), (iii) and (iv) determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such Restricted Payments had been made as of the first day of the four-quarter fiscal period covered thereby and evidenced by a certificate from the principal accounting officer of the Borrower demonstrating such compliance in reasonable detail and indicating whether a particular Restricted Payment is being made using the Restricted Payment Base Basket (and, if so, whether it is using the Initial Restricted Payment Base Basket) or the Restricted Payment Builder Basket (it being understood that the Borrower shall be permitted to elect to use either basket or a combination of the two baskets, to the extent available, in respect of any particular Restricted Payment), Restricted Payments in an aggregate amount, together with amount from and after the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), Closing Date not to exceed the sum of (A) $75,000,000 (such an amount to be increased equal to $100,000,000 upon 150,000,000 (the Total Leverage Ratio as of amount described in this clause (A), the last day of any Test Period being less “Initial Restricted Payment Base Basket”), plus (B) an amount equal to the Project Reimbursements received by the Borrower and its Restricted Subsidiaries from Persons other than 5.0 Loan Parties after the Closing Date that is Not Otherwise Applied (the cumulative amount available for Restricted Payments pursuant to 1.0clauses (A) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom), the Borrower may make additional Restricted Payments in an amount (together with less the aggregate amount of Investments made in reliance on Section 7.02(n)(B), collectively, the “Restricted Payment Base Basket”) plus (C) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 7.02(v8.04) received by the Borrower (provided, that, in the case of any such Permitted Equity Issuances by the Holding Companies, such Net Cash Proceeds shall have been received by the Borrower in the form of a capital contribution from the applicable Holding Company), in each case after the Closing Date that are Not Otherwise Applied and, plus (D) the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied, plus (E) an amount equal to the returns or refunds of Qualifying Investments (excluding any interest, earnings, returns or other gains in respect of such Qualifying Investments determined in the manner set forth in Section 1.03(d)) not to exceed any reduction in taxes realized received by the Borrower and the its Restricted Subsidiaries in from Persons other than Loan Parties after the form of refunds or deductions realized in connection with Closing Date that is Not Otherwise Applied (the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make cumulative amount available for Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
pursuant to clauses (kC) if the Borrower shall become the Subsidiary of Holdingsthrough (E), so long as no Default shall have occurred and be continuing or would result therefromcollectively, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).the
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Company may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Company (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Company or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Company (or any direct or indirect parent of the Company) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Lead Borrower or any Subsidiary; provided that such payments do not to exceed $25,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $50,000,000; provided further that cancellation of Indebtedness owing to the Company (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Company, any of the Company’s direct or indirect parent companies or any of the Company’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Company’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Company:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Company or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Company and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Company or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Company attributable to the direct or indirect ownership or operations of the Borrower Company and its Subsidiaries) and fees and expenses otherwise due and payable by the Company or any Restricted Subsidiary and permitted to be paid by the Company or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Company or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(gh) the Borrower Company or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Company or other acquisition or retirement for value any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) within sixty (60) days following the Borrower by any futureconsummation of a Specified Disposition, present or former employee or director of the Borrower Company or any of its Subsidiaries pursuant may pay dividends to any employee or director equity plan, employee or director stock option plan the Holding Company (or any other employee direct or director benefit plan indirect parent thereof) with all or any agreement (including any stock subscription or shareholder agreement) with any employee or director portion of the Permitted Specified Disposition Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant Subsidiaries to this clause pay such dividend;[reserved];
(fk) does not exceed in any fiscal year of the Borrower $15,000,000 within sixty (which shall increase to $20,000,000 subsequent to 60) days following the consummation of a Qualifying IPOPermitted LifeCell Disposition, with unused amounts in the Company or any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect of its Subsidiaries may pay dividends to the following provisoHolding Company (or any direct or indirect parent thereof) with all or any portion of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation Permitted LifeCell Net Cash Proceeds, if any, of a Qualifying IPO);
(h) such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries to pay such dividend; and
(l) the Company or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 the Company shall have been in compliance, on a Pro Forma Basis, with the Financial Covenants as of the end of the most recent Test Period and (such amount to be increased to $100,000,000 upon B) the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional such Restricted Payments Payment in an amount (together with the aggregate amount in excess of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom$50,000,000, the Lead Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(m) (l) the declaration and payment by the Company of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Company or the Holding Company following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Company in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 1 contract
Samples: Credit Agreement (Acelity L.P. Inc.)
Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to any other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the a Borrower and or any such other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on ratably according to their relative ownership interests of the relevant class of Equity InterestsInterests or as otherwise required by the applicable Organization Documents);
(b) the Borrower Borrowers and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by to be incurred under Section 7.03) of such Person;
(c) Restricted Payments made pursuant to the Acquisition Agreement in connection with the Transaction (including any amounts to be paid underTransactions on, or contemplated bysubstantially concurrently with, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoClosing Date;
(d) to the extent constituting Restricted Payments, the Borrower Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(o)) or 7.04 (other than a merger, amalgamation or consolidation involving a Borrower);
(e) repurchases Restricted Payments in respect of the repurchase of Equity Interests in Holdings (or any Parent Entity of Holdings that only owns Equity Interests, directly or indirectly, in the Borrowers and their Subsidiaries), a Borrower or any Restricted Subsidiary deemed to that occur upon or in connection with the exercise of stock options or warrants or similar rights if such Equity Interests Restricted Payments represent a portion of the exercise price of such options or warrantswarrants or similar rights or tax withholding obligations with respect thereto;
(f) Restricted Payments of Equity Interests in, Indebtedness owing from and/or other securities of or Investments in, any Unrestricted Subsidiaries;
(g) the Borrowers may pay (or make Restricted Payments to allow Holdings or any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any Parent Entity) held by any Management Stockholder, including pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of a Borrower (or any Parent Entity) or any of its Subsidiaries; provided, the aggregate Restricted Payments made pursuant to this Section 7.06(g) after the Closing Date together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(j) in lieu of Restricted Payments permitted by this clause (g) shall not exceed:
(i) the greater of (A) 10% of Closing Date EBITDA and (B) 10% of TTM Consolidated Adjusted EBITDA as of the applicable date of measurement in any calendar year, with unused amounts in any calendar year being carried over to succeeding calendar years; plus
(ii) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrowers or the Restricted Subsidiaries after the Closing Date; plus
(iii) to the extent contributed in cash to the common Equity Interests of a Borrower and Not Otherwise Applied, the proceeds from the sale of Equity Interests of Holdings or any Parent Entity, in each case to a Person that is or becomes a Management Stockholder that occurs after the Closing Date; plus
(iv) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former Company Person that are foregone in return for the receipt of Equity Interests of Holdings or a Parent Entity, a Borrower or any Restricted Subsidiary; plus
(v) payments made in respect of withholding or other similar taxes payable upon repurchase, retirement or other acquisition or retirement of Equity Interests of Holdings or a Parent Entity or its Restricted Subsidiaries or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement;
(h) each Borrower may make Restricted Payments to Holdingsany Parent Entity or Holdings GP, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofas applicable:
(i) (x) in respect of any taxable period for which a Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign income tax purposes of which a Parent Entity is the common parent, or for which a Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, in an amount not to exceed the amount of any U.S. federal, state, local or foreign income taxes that such Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had such Borrower and/or its Subsidiaries, as applicable, been treated as a stand-alone corporate taxpayer or a stand-alone corporate group (including amounts to fund estimated payments of such taxes) or (y) in respect of any taxable period for which a Borrower is treated as a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign tax purposes except as otherwise described in clause (x), in an amount not to exceed the product of (A) the taxable income of any such Parent Entity and Holdings GP, as applicable, that is derived from such Borrower with respect to their respective ownership interests in such Borrower for such taxable period, and (B) the applicable highest combined federal, state, and local tax rate for a corporation doing business in New York City, taking into account the year in which the taxable income is recognized by such Parent Entity and Holdings GP, as applicable, and the deductibility of state and local income taxes as applicable at the time for United States federal income tax purposes and any limitations thereon and assuming that all tax losses incurred in earlier periods by such Borrower are carried forward and offset taxable income and gain in later periods; provided that in the case of any such distributions attributable to Tax liability in respect of income of an Unrestricted Subsidiary, each Borrower shall use all commercially reasonable efforts to cause such Unrestricted Subsidiary (or another Unrestricted Subsidiary) to make cash distributions to such Borrower or its Restricted Subsidiaries in an aggregate amount that such Borrower determines in its reasonable discretion is necessary to pay such Tax liability on behalf of such Unrestricted Subsidiary;
(ii) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or make Restricted Payments to allow any direct or indirect parent thereofParent Entity to pay) attributable to operating costs and expenses (including, following the consummation of a Qualifying IPO, Public Company Costs) of Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (GP or any direct or indirect parent thereof) to pay operating expenses Parent Entity incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower Borrowers and its their Subsidiaries;
(iii) the proceeds of which shall will be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’such Parent Entity’s) corporate or legal existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings and the Borrowers shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the a Borrower or its a Restricted Subsidiaries Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section 7.02) or (2) the merger or amalgamation (to the extent permitted in Section 7.04) of the Person formed or acquired into the by a Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andInvestment;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent Entity to pay) costs, fees and expenses (other than to Affiliates) related to any successful or unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which (A) will be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings, Holdings GP or any Parent Entity to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrowers and the Restricted Subsidiaries or (B) will be used to make payments permitted under Sections 6.18, (g), (i) and (n) (but only to the extent such payments have not been and are not expected to be made by a Borrower or a Restricted Subsidiary); provided, the aggregate Restricted Payments made pursuant to this Section 7.06(h) shall be reduced by the amount of Investments made pursuant to Section 7.02(i) in lieu of Restricted Payments under this Section 7.06(h);
(gi) Restricted Payments (i) made in connection with the payment cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition or other transaction permitted by the Loan Documents or (ii) to honor any conversion request by a holder of convertible Indebtedness and to make cash payments in lieu of fractional shares in connection therewith;
(j) the declaration and payment of dividends on a Borrower’s, Holdings’, Holdings GP’s or a Parent Entity’s common stock following the first public offering of a Borrower’s common stock or the common stock of any Parent Entity after the Closing Date, of up to the sum of (A) 6% per annum of the net proceeds received by or contributed to a Borrower may pay for in or from any such public offering, other than public offerings with respect to a Borrower’s common stock registered on Form S-4 or Form S-1, plus (B) an amount equal to 6% of the repurchase, retirement or other acquisition or retirement for value Market Capitalization at the time of such public offering;
(k) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the Borrower exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards;
(l) payments or 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 a merger, consolidation, amalgamation, transfer of assets or other transaction permitted by the Loan Documents;
(m) payments or distributions of a Restricted Payment within 60 days after the date of declaration thereof if at the date of declaration such Restricted Payment would have been permitted hereunder;
(n) Restricted Payments (not consisting of cash or Cash Equivalents) made in lieu of fees or expenses (including by way of discount), in each case in connection with any permitted receivables financing permitted under Section 6.01;
(o) the Borrowers may (or may make Restricted Payments to permit any Parent Entity to) (i) redeem, repurchase, retire or otherwise acquire in whole or in part any Equity Interests of a Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan Restricted Subsidiary or any other employee Equity Interests of any Parent Entity (“Treasury Equity Interests”), in exchange for, or director benefit plan with the proceeds (to the extent contributed to Holdings or any agreement (including any stock subscription or shareholder agreementa Borrower substantially concurrently) with any employee or director of the sale or issuance (other than to a Borrower or any Restricted Subsidiary) of, other Equity Interests or rights to acquire its Equity Interests (“Refunding Equity Interests”) and (ii) declare and pay dividends on any Treasury Equity Interests out of any such proceeds;
(p) redemptions in whole or in part of any of its Subsidiaries; providedEquity Interests for another class of its Equity Interests (other than Disqualified Equity Interests, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent except to the consummation of extent issued by a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject Borrower to a maximum Restricted Subsidiary) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (without giving effect and in no event shall such contribution or issuance so utilized increase the Available Amount) (other than Disqualified Equity Interests, except to the following proviso) of $30,000,000 in any calendar year (which shall increase extent issued by a Borrower to $40,000,000 subsequent to the consummation of a Qualifying IPORestricted Subsidiary);
(hq) so long Restricted Payments constituting or otherwise made in connection with or relating to any Permitted Reorganization; provided that if immediately after giving Pro Forma Effect to any such Permitted Reorganization and the transactions to be consummated in connection therewith, any distributed asset ceases to be owned by a Borrower or another Restricted Subsidiary (or any entity ceases to be a Restricted Subsidiary), the applicable portion of such Restricted Payment must be otherwise permitted at such time under another provision of this Section 7.06 (and constitute utilization of such other Restricted Payment exception or capacity);
(r) Restricted Payments; provided that the Total Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) would be less than or equal to the Closing Date Total Net Leverage Ratio less 0.50 to 1.00; provided that no Event of Default has occurred and is continuing or would result therefrom; and
(s) the Borrowers may make Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) in an aggregate amount not to exceed the sum of,
(i) the greater of (A) 75% of Closing Date EBITDA and (B) 75% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination; and
(ii) the Available Amount at such time; provided, that no Specified Event of Default shall have occurred and be continuing or would result therefrom. The amount set forth in Section 7.06(s)(i) may, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted Payments, be utilized by this clause (h), not a Borrower or any Restricted Subsidiary to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default make or hold any Investments without regard to Section 7.02 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Junior Financing without regard to Section 7.09(a). The amount of any Restricted Payment at any time shall have occurred be the amount of cash and be continuing the fair market value of other property subject to the Restricted Payment at the time such Restricted Payment is made. For purposes of determining compliance with this Section 7.06, in the event that any Restricted Payment (or would result therefromany portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may make additional Borrowers may, in their sole discretion, at the time such Restricted Payments in an amount Payment is made, divide, classify or reclassify, or at any later time divide, classify, or reclassify, such Restricted Payment (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed or any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”portion thereof) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions any manner that complies with this covenant on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent date such holder (Restricted Payment is made or its affiliates) participates in the Receivables Management Business (including such later time, as a lender or financier under any financing provided to a Receivables Management Subsidiary)applicable.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any such other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower may make Restricted Payments in an aggregate amount at any time outstanding equal to the amount of Excluded Contributions;
(d) the Borrower may make Restricted Payments in connection with the Transaction (including any amounts to be paid under, Transactions or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the 2011 Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(de) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into transactions and consummate transactions take actions expressly permitted by any provision Section 7.02 (other than clauses (e) or (m) of Section 7.04 7.02), Section 7.04, Section 7.05 or 7.08 other than Section 7.08(f)7.08;
(ef) repurchases or withholding of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants warrants, or the vesting of restricted stock (including restricted stock units) or other Equity Interests, if such Equity Interests represent a portion of the exercise price of, or withholding obligation with respect to, such options, warrants, restricted stock or other Equity Interests and any related payment or withholding in respect of such options or warrantsobligation;
(fg) to pay for the repurchase, retirement, redemption or other acquisition or retirement of common Equity Interests of the Borrower or any Parent or any employee investment vehicles held by any future, present or former director, officer, employee members of management, consultants of the Borrower, any Parent or any of its Subsidiaries or their respective estates, heirs, spouses or former spouses pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower, any Subsidiary or any Parent in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder, equity holder, partnership or limited liability company agreement, including any Equity Interest rolled over by management of the Borrower, any Subsidiary or any Parent in connection with the 2011 Transactions; provided that the aggregate amount of Restricted Payments made under this clause (g) does not exceed in any calendar year $50,000,000 (with unused amounts in any calendar year being carried over to any succeeding calendar year, it being understood that the Borrower may elect to apply all or any portion of the amounts so carried over in any calendar year); and provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, Equity Interests of any Parent or any employee investment vehicle, in each case to any future, present or former, director, employee, consultant or member of management of the Borrower or any Parent or any of its Subsidiaries that occurs after the Closing Date plus (B) the amount of any cash bonuses otherwise payable to any future, present or former, director, employee, consultant or member of management of the Borrower, any Parent or any of its Subsidiaries that are foregone in return for the receipt of Equity Interests of the Borrower, any Parent or any of its Subsidiaries or any employee investment vehicle pursuant to a deferred compensation plan of such entity plus (C) the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries after the Closing Date (provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (A), (B) and (C) above in any calendar year) less (D) the amount of any Restricted Payments previously made pursuant to clauses (A), (B) and (C) of this clause (g); and provided further that cancellation of Indebtedness owing to the Borrower from any future, present or former, director, employee, consultant or member of management of the Borrower, any Parent, or any of its Subsidiaries or their respective estates, heirs, spouses or former spouses in connection with a repurchase of Equity Interests of the Borrower or any Parent shall not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment any Parent in amounts intended to enable any direct such Parent to pay or indirect parent thereofcause to be paid:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower franchise and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise excise taxes and other fees, taxes and expenses required to maintain its corporate or other legal existence;
(ii) federal, foreign, state and local income or franchise taxes with respect to any period for which the Borrower or any of its direct Subsidiaries is a member of a consolidated, combined or indirect parents’) corporate existence;
(iv) if unitary group of which such Parent is a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02member; provided that (A) the amount of such payments shall not exceed the tax liability that the Borrower and its Subsidiaries would have incurred were such taxes determined as if such entities were a stand-alone group; and provided that Restricted Payment shall Payments under this clause in respect of any taxes attributable to the income of any Unrestricted Subsidiaries may be made substantially concurrently with only to the closing of extent that such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed Unrestricted Subsidiaries have made cash payments to the Borrower or its Restricted Subsidiaries Subsidiaries;
(iii) customary salary, bonus and other benefits payable to officers, directors, employees or (2) the merger (members of management of any Parent to the extent permitted in Section 7.04) such salaries, bonuses and other benefits are attributable to the ownership or operation of the Person formed or acquired into the Borrower or and its Restricted Subsidiaries in order to consummate such Permitted Acquisition, Subsidiaries;
(iv) general corporate overhead costs and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein expenses (including professional expenses) for any Parent to the extent required by such costs and expenses are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement); andits Restricted Subsidiaries, and amounts to fund any charitable foundation of any Parent;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) Affiliates related to any unsuccessful equity or debt offering permitted not prohibited by this Agreement and fees and expenses related to any disposition or acquisition or investment transaction by the Borrower, any Parent or any Subsidiary (or any acquisition of or investment in any business, assets or property that will be contributed to the Borrower, any Parent or any Subsidiary as part of the same or a related transaction) not prohibited by this Agreement;
(gvi) taxes arising by virtue of (a) having capital stock outstanding or being a direct or indirect holding company parent of the Borrower, any Subsidiary of the Borrower or any Parent, (b) having guaranteed any obligations of the Borrower or any Subsidiary of the Borrower, (c) having made a payment in respect of any of the payments permitted to be made to it under this Section 7.06, (d) any actions taken with respect to any IP Rights and associated rights relating to the business of the Borrower or any Subsidiary of the Borrower and (e) the receipt of, or entitlement to, any payment permitted to be made under this Section 7.06 or any payment in connection with the Transactions or the 2011 Transactions, including any payment received after the Closing Date pursuant to any agreement related to the Transactions or the 2011 Transactions;
(vii) payments made or expected to be made to cover social security, medicare, withholding and other taxes payable in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of any Parent or to make any other payment that would, if made by the Borrower may pay for or any Restricted Subsidiary, be permitted pursuant to clause (k) below;
(viii) annual management, consulting, monitoring and advisory fees to any of the Sponsor and its Affiliates in an aggregate amount in any fiscal year not to exceed the Maximum Management Fee Amount, and related expenses and indemnities, pursuant to the Sponsor Management Agreement or otherwise; and
(ix) interest and principal when due on the Holdco Senior Unsecured Notes; provided that before and immediately after giving effect to such payment, no Event of Default under Section 8.01(a) or (f) shall exist or would result from such action;
(i) from and after a Qualifying IPO the declaration and payment of dividends on the Borrower’s common stock (or the payment of dividends to any Parent to fund a payment of dividends on such Parent’s common stock), following the first Qualifying IPO of the Borrower’s common stock or the common stock of any Parent after the Closing Date, of up to 6% per annum of the net cash proceeds received by or contributed to the Borrower in or from any such Qualifying IPO;
(j) Restricted Payments in an aggregate amount not to exceed (x) together with the aggregate amount of prepayments, redemptions, purchases, defeasances and other payments made pursuant to Section 7.12(a)(iii)(x), the greater of $100,000,000 and 10.0% of Consolidated Tangible Assets plus (y) the Available CNI Amount, provided that before and immediately after giving effect to such Restricted Payment, no Default or Event of Default shall exist or would result from such action;
(k) payments made or expected to be made by the Borrower or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests by any future, present or former, director, employee, officer, consultant or member of management of the Borrower, any of its Subsidiaries or any Parent and their respective estates, heirs, spouses and former spouses and repurchases or withholding of Equity Interests deemed to occur upon exercise of stock options or warrants or the vesting of equity awards (including restricted stock and restricted stock units) if such Equity Interests represent a portion of the exercise price of, or withholding obligation with respect to, such options, warrants or equity awards and any related payment in respect of such obligation;
(l) [Reserved];
(m) the declaration and payment of dividends to, or the making of loans to, Holdings in an amount not exceeding the amount of Excess Proceeds remaining after the consummation of any Asset Sale Offer (each as defined in the Senior Unsecured Notes Indenture), the proceeds of which are applied solely to the repurchase, redemption, defeasance or other acquisition or retirement for value of any Holdco Senior Unsecured Notes; provided that before and immediately after giving effect to such payment, no Event of Default under Section 8.01(a) or (f) shall exist or would result from such action;
(n) the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Borrower by deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Borrower, in each case, permitted under this Agreement;
(o) the payment of any futuredividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption notice as the case may be if at the date of declaration or notice, present the dividend or former employee other distribution or director redemption would have complied with this Section 7.06; and
(p) (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Borrower or any direct or indirect parent company (“Retired Capital Stock”) in exchange for or out of its Subsidiaries pursuant the proceeds of the sale or issuance (other than to a Restricted Subsidiary or the Issuer) of Equity Interests of the Borrower or any direct or indirect parent company thereof to the extent contributed to the equity capital of the Borrower (in each case, other than Disqualified Stock) (“Refunding Capital Stock”) or any contributions to the equity capital of the Borrower and (B) the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the sale or issuance (other than to a Subsidiary of the Borrower or to an employee or director equity plan, employee or director stock option ownership plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of trust established by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Refunding Capital Stock.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments ratably with respect to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of its Equity Interests;
(b) the Borrower and each Restricted Subsidiary Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Company may make Restricted Payments Payments; provided that the Borrowers would be in connection Pro Forma Compliance with the Transaction (including any amounts covenants set forth in Section 7.10, in each case such compliance to be paid under, or contemplated by, determined on the Transaction Agreement) basis of the financial information most recently delivered to the Administrative Agent and the fees and expenses related thereto owed Lenders (either pursuant to Affiliates, including Section 6.01(a) or 6.01(b) or in any payment subsequent delivery of financial information by the Company to holders of Equity Interests of the Borrower (immediately Administrative Agent prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretosuch Restricted Payments);
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 7.05 or 7.08 other than Section 7.08(f)7.08;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower Company may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementCompanies;
(g) the Borrower Company may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests repurchase common stock of the Borrower Company in an aggregate purchase amount determined by any future, present or former employee or director of the Borrower or any Company up to $2,500,000,000 pursuant to a self-tender to be made by the Company to purchase shares of its Subsidiaries pursuant to any employee common stock in the open market (or director equity plan, employee or director stock option plan or any through such other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of means as the Borrower or any of its SubsidiariesCompany may elect); provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);and
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Company may make additional Restricted Payments in an aggregate amount, together with the aggregate amount repurchase up to 15 million shares of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made its common stock pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized authority granted by the Borrower and the Restricted Subsidiaries Company’s board of directors in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by February 2010. Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)7.07. [Intentionally Omitted].
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Information Services, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in respect of working capital adjustments or purchase price or other adjustments and payments and to satisfy indemnity reimbursement and other similar obligations in each case under an acquisition agreement in connection with the Transaction (including any amounts to be paid under, Permitted Acquisition or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoother Permitted Investment;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted (other than by reference to Section 7.06) by any provision of Section 7.04 7.02, Section 7.04, Section 7.07(e), Section 7.06(j) or 7.08 other than Section 7.08(f)7.07(m) and may make any payments permitted under Section 7.07(e) as Restricted Payments;
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it (or any direct or indirect parent thereof) held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, nominees, trusts or other estate planning entities, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary or the Borrower (or any direct or indirect parent thereof) or pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any similar agreement (including any stock subscription or shareholder agreement) with any such current or former employee, director, manager, officer or consultant of such Restricted Subsidiary (or of the Borrower or any direct or indirect parent thereof); provided that the aggregate amount such payments permitted under this clause (f) do not to exceed the greater of (x) $5,800,000 and (y) 10.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year; provided that any unused portion of the preceding basket for any calendar year may be carried over to the next succeeding calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the consolidated, combined or similar income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) such parent’s income tax group that is attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if Subsidiaries; provided that (x) no such payments shall exceed the income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and its Subsidiaries filed separately(y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash distributions made by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose (any such Restricted Payments, a “Tax Distribution”);
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g), ) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.027.02 (other than Investments made pursuant to Section 7.02(p)); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary (provided that any such contributions to the extent of any such Restricted Payment shall not increase the Available Amount or constitute a Cure Amount) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.10;
(v) if a Holdings Election Event the proceeds of which shall occurbe used to pay customary costs, fees and expenses (other than to Affiliates) related to any successful or unsuccessful equity or debt offering or amendment thereof not prohibited by this Agreement;
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) taxes related to any unsuccessful equity restricted stock units held by current or debt offering permitted by this Agreement;former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees); and
(gviii) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of Public Company Costs,
(h) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of its Subsidiaries declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to any employee or director equity plan, employee or director stock option plan or any this Section 7.06(h) shall be deemed to have utilized capacity under such other employee or director benefit plan or any agreement provision of this Agreement);
(including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hj) so long as no Event of Default shall have occurred and be continuing or would result therefrom , the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed (i) the greater of (x) $14,500,000 and (y) 25.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period minus (ii) the amount of any Investments made pursuant to Section 7.02(t) in reliance of unused amounts reallocated from this Section 7.06(j) minus (iii) the amount of any prepayments of Junior Debt made pursuant to Section 7.08(a)(iii) in reliance of unused amounts reallocated from this Section 7.06(j); provided that, at the time of any such Restricted Payment, the Total Net Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.80:1.00;
(k) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountamount not to exceed the Available Amount; provided that at the time of any such Restricted Payment made in reliance on clauses (a) and (b) of the definition of “Available Amount”), together with after giving effect thereto, the aggregate amount Total Net Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.80:1.00;
(l) [reserved];
(m) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) prepayments, redemptions, purchases, defeasances no Event of Default has occurred and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) is continuing or would result therefrom and (ii) loans the Total Net Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.80:1.00;
(n) the distribution, by dividend or otherwise, of Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and advances owns no assets other than Equity Interests of an Unrestricted Subsidiary); provided that, this clause (n) shall not permit distributions, by dividend or otherwise, of Unrestricted Subsidiaries whose assets are all or substantially all cash or Cash Equivalents;
(o) with respect to the Searchlight Preferred Equity Investment, (i) Restricted Payments paid in-kind pursuant to the terms of the Searchlight Preferred Equity Investment Documents and (ii) cash Restricted Payments in the form of (a) regularly scheduled cash dividend payments pursuant to the Searchlight Preferred Equity Investment Documents and (b) redemptions of the Searchlight Preferred Equity Investment pursuant to the Searchlight Preferred Equity Investment Documents to the extent that, in the case of any Restricted Payment made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hii), not to exceed the sum after giving pro forma effect thereto (1) no Event of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromtherefrom and (2) the Total Net Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.00:1.00; provided that any Restricted Payments made in respect of the Searchlight Preferred Equity Investment made on or prior to the Closing Date shall only be permitted to the extent permitted under this clause (o) and, notwithstanding anything to the contrary set forth in this Agreement, no other exception set forth in this Section 7.06 may be used for such purpose;
(p) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants and the vesting of restricted stock and restricted stock units; and
(q) distributions or payments of fees, sales contributions and other transfers of Receivables Assets and purchases of Receivables Assets pursuant to a Receivables Repurchase Obligation, in each case in connection with a Permitted Receivables Financing. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the conversion by holders of any Permitted Convertible Indebtedness into common equity of Kore Holdings in accordance with the terms of the Convertible Notes Indenture as in effect on the Effective Date or other instrument governing such Permitted Convertible Indebtedness, shall not constitute a Restricted Payment so long as no cash payments are made in respect thereof other than as a result of the payment of cash in lieu of fractional shares and (ii) any required payment (including, without limitation, premium payments), whether in cash, securities or other property, with respect to, or any a result of any exercise and settlement or early unwind of, any Permitted Bond Hedge Transaction in accordance with the terms of the agreement governing such Permitted Bond Hedge Transaction or such early unwind shall not constitute a Restricted Payment. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower shall, in its sole discretion, classify or divide such Restricted Payment (or any portion thereof) in any manner that complies with this covenant and may make additional later divide and reclassify any Restricted Payments Payment (or any portion thereof) so long as the Restricted Payment (as so divided and/or reclassified) would be permitted to be made in an amount (together with reliance on the aggregate amount applicable exception or exceptions as of Investments the date of such reclassification. Any Restricted Payment made pursuant to Section 7.02(v7.06(j)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower or (m) shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided limited to a Receivables Management Subsidiary)dividend, distribution or payment made in cash.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Borrower) or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent of the Borrower) by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, consultant or distributor of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(gh) the Borrower or any of the Restricted Subsidiaries may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.12(a)(i)(D), not to exceed the sum of (Ai) the greater of $75,000,000 300,000,000 and 2.75% of Total Assets, in each case determined at the time of such Restricted Payment, and (ii) the Available Amount at such amount to be increased to $100,000,000 upon time; and
(m) beginning on the Total Leverage Ratio as fifth anniversary of the last day date of issuance of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) Qualified Holding Company Debt so long as no Default shall have has occurred and be continuing or would result therefromis continuing, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant pay dividends to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) Holdings so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of thereof are promptly applied to fund cash interest payments or “AHYDO catch-up” payments on Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of HoldingsHolding Company Debt, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used on a Pro Forma Basis after giving effect to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; providedsuch dividends, that the Borrower shall have elected Senior Secured Leverage Ratio for the most recently ended Test Period would not be greater than 4.5 to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)1.0.
Appears in 1 contract
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $30,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of (i) $215,000,000 and Holdings (ii) 3.00% of Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, to the extent any such Restricted Payment is made by utilizing clause (b) of the definition of the Cumulative Credit, the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis shall not exceed 6.00 to 1.00;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year other direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth AmountRestricted Payments in an aggregate amount per annum not to exceed 7.00% of Market Capitalization;
(m) [reserved];
(i) so long as no Default shall have occurred the declaration and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount payment of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized cash dividends by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lii) the declaration and payment of dividends or distributions by the Borrower to, or the making of loans to, any direct or indirect parent company of the Borrower in amounts required for any direct or indirect parent company of the Borrower to declare and distributions on pay any cash dividends, in each case of subclauses (i) and (ii), pursuant to the terms of the applicable certificate of designations to holders of any class or series of preferred stock issued in exchange for Equity Interests of any Receivables Management Subsidiary to holders the Asian JV; provided, that the aggregate amount of minority interests substantially consistent with past practice Restricted Payments made under this clause, (A) shall be unlimited if, after giving pro forma effect to the extent payment of such holder Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal to 6.00 to 1.00 and (B) shall not exceed $50.0 million in any calendar year if, after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 6.00 to 1.00;
(o) the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or its affiliatesa Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary owns no assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents)); and
(p) participates Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06 and will only be required to include the amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations could be classified as incurred under a “ratio-based” basket (including giving pro forma effect to the making of such portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as a lender having been made pursuant to such “ratio-based” basket and thereafter the remainder of the Restricted Payment as having been made pursuant to one or financier under more of the other clauses of this Section 7.06 and if any financing provided such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to a Receivables Management Subsidiary)have automatically occurred at such time.
Appears in 1 contract
Restricted Payments. Declare Except for transactions between or makeamong Loan Parties, directly neither Holdings nor the Borrower will (nor will they permit any of the Restricted Subsidiaries to) declare or indirectlymake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of Equity Interests of Holdings or any of the Restricted PaymentSubsidiaries, exceptor purchase, redeem or otherwise acquire for value (or permit any of the Restricted Subsidiaries to do so) any shares of any class of Equity Interests of Holdings or any of the Restricted Subsidiaries or any warrants, rights or options to acquire any such shares, now or hereafter outstanding (collectively, “Restricted Payments”), except that:
(a) (i) each Restricted Subsidiary may (i) make Restricted Payments to the Borrower Holdings and to other Restricted Subsidiaries and that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests a pro rata basis to the holders of its Equity Interests or on a greater than ratable basis to the relevant class of Equity Interests;
extent such greater payments are made solely to Holdings or a Restricted Subsidiary) and (bii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(db) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 6.08, 6.11 and 6.12 (other than Section 7.08(f6.12(b));
(ec) repurchases of Equity Interests in Holdings and the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make additional Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 the portion, if any, of the Available Amount as of such time that Holdings or the Borrower elects to apply to this Section 6.06(c), such election to be specified in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers a written notice of a Financial Officer of Holdings (or any direct or indirect parent thereof) attributable calculating in reasonable detail the amount of Available Amount immediately prior to such election and the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted amount thereof elected to be made pursuant to Section 7.02so applied; provided that (Ai) before and after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to any such Restricted Payment, the Leverage Ratio is equal to or less than 3.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment shall be made substantially concurrently with and the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted pro forma adjustments described in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement1.07;
(gd) Holdings and the Borrower Restricted Subsidiaries may make (i) Restricted Payments under this clause (d) and (ii) Investments pursuant to Section 6.08(k) in an aggregate amount (taken together) not to exceed $250,000,000 in any fiscal year; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(e) Holdings may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or director consultant of the Borrower Holdings or any of its the Subsidiaries pursuant to (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiariesforegoing); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to under this clause (fe) does not exceed in any fiscal year does not exceed (x) $30,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from the immediately preceding fiscal year (not including any fiscal year ending prior to 2017) which was not expended by the Borrower $15,000,000 for Restricted Payments in such fiscal year (which shall increase to $20,000,000 subsequent the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the consummation previous fiscal year shall be deemed to have been utilized first by any Restricted Payments made under this clause (e) in such fiscal year);
(f) Holdings may repurchase Equity Interests of Holdings upon the cashless exercise of stock options, warrants or other convertible securities as a Qualifying IPOresult of Holdings accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(g) Holdings and any Restricted Subsidiary may pay cash payments in lieu of fractional shares in connection with unused amounts in (i) any calendar year being carried over to succeeding calendar years subject to a maximum dividend, split or combination of its Equity Interests or any Permitted Acquisition (without giving effect to or similar Investment) or (ii) the following proviso) exercise of $30,000,000 in warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any calendar year (which shall increase to $40,000,000 subsequent to of the consummation of a Qualifying IPO)Subsidiaries;
(h) Holdings and any Restricted Subsidiary may make repurchases of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay Taxes related to the exercise of such Equity Interests;
(i) Holdings and the Restricted Subsidiaries may make any additional Restricted Payments so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefromtherefrom and (ii) the Leverage Ratio is equal to or less than 3.00 to 1.00 on a pro forma basis after giving effect to such Restricted Payment and the pro forma adjustments described in Section 1.07; and
(j) in connection with the Acquisition Transactions, (i) the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) Borrower Special Dividend and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Spinco may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Spinco Special Cash Payment.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:or incur any obligation (contingent or otherwise) to do so, unless, both before and immediately after giving effect to the making of any such Restricted Payment (a) the Borrower shall be in compliance with the financial covenants set forth in Section 7.10, on a pro forma basis, and (b) no Event of Default shall have occurred and be continuing, except:[Reserved].
(a) (i) each Restricted Subsidiary may declare and make Restricted Payments to the Borrower and to any other Subsidiary (and, in the case of a Restricted Subsidiaries and (ii) each Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of Borrower to the then holders of such PersonEquity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries any Subsidiary may enter into and consummate transactions expressly permitted not prohibited by any provision of Section 7.04 7.02, 7.04, 7.07(b), or 7.08 other than Section 7.08(f7.07(d);
(ed) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds pay cash in lieu of which will be used to pay the tax liability to each relevant jurisdiction fractional Equity Interests in respect of consolidatedconnection with any dividend, combined, unitary split or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower combination thereof and its Subsidiaries filed separately;
(ii) the proceeds honor any conversion request by a holder of which shall be used by Holdings (or convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any direct or indirect parent thereof) to pay operating expenses incurred such conversion and may make payments on convertible Indebtedness in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and accordance with its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)terms; and
(ve) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness any dividend or distribution within 120 days after the date of Holdings permitted by Section 7.16; provideddeclaration thereof, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions if on the Equity Interests date of any Receivables Management Subsidiary to holders declaration such payment would have complied with the provisions of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) the Borrowers and each Restricted Subsidiary may make Restricted Payments to the Borrower Parents, the Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Parents may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parents may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Equity Amount or Excluded Contribution Amount));
(c) Restricted Payments made on or after the Closing Date for fees and expenses in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower Parents, the Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Parents (or any direct or indirect parent thereof), the Borrowers or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) any Parent, the Borrower Borrowers or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of any Parent (or any direct or indirect parent of such Parent) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of any Parent (or any direct or indirect parent thereof), the Borrowers or any Subsidiary; provided that such payments do not to exceed $12,500,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $25,000,000; provided, further, that cancellation of Indebtedness owing to any Parent (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of such Parent, any of such Parent’s direct or indirect parent companies or any of the Borrowers or any Restricted Subsidiary in connection with a repurchase of Equity Interests of any of such Parent’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) each Parent, each Borrower, and its it’s the Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in such Borrower or such Parent:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelymake Permitted Tax Distributions;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in such Parent to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g), ) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of such Parent and its Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of such Parent attributable to the direct or indirect ownership or operations of such Parent and the Subsidiaries) and fees and expenses otherwise due and payable by any Parent, any Borrower or any Restricted Subsidiary and permitted to be paid by such Parents, such Borrower and its Subsidiariessuch Restricted Subsidiaries under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence (including any costs or expenses associated with being a public company listed on a national securities exchange);
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the a Parent, a Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the a Parent, a Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.10; provided that in the case of a Restricted Payment made by a Loan Party, within such property shall not build the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andAvailable Equity Amount;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement Agreement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant related to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO; and
(vi) the proceeds of which shall be used to pay customary salary, with unused amounts in bonus and other benefits payable to officers and employees of any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect direct or indirect parent company or partner of any Parent to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent extent such salaries, bonuses and other benefits are attributable to the consummation ownership or operation of a Qualifying IPO)the Parents, the Borrowers and the Restricted Subsidiaries;
(h) so long as no Default shall have occurred and be continuing or would result therefromany Parent, the Borrower Borrowers or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountpay any dividend or distribution within 60 days after the date of declaration thereof, together if at the date of declaration such payment would have complied with the aggregate amount provisions of this Agreement (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made it being understood that a distribution pursuant to this Section 7.13(a)(iv7.06(h) and (ii) loans and advances made pursuant shall be deemed to Section 7.02(m) in lieu have utilized capacity under such other provision of Restricted Payments permitted by this clause (hAgreement), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred any Parent, any Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and be continuing (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) any Parent, any Borrower or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the greater of (x) $25,000,000 and (y) 20% of Consolidated EBITDA of the Parents, the Administrative Borrower and the Restricted Subsidiaries in for the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrowermost recently ended Test Period calculated on a Pro Forma Basis;
(k) if any Parent, any Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed (i) the Available Equity Amount (provided that at the time of such Restricted Payment the Total Leverage Ratio of the Parents, the Administrative Borrower shall become and the Subsidiary Restricted Subsidiaries as of Holdingsthe end of the most recently ended Test Period, so long as on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefromgreater than 5.25:1.00) and/or (ii) the Excluded Contribution Amount;
(l) after a Qualifying IPO, dividends and distributions (i) any Restricted Payment the proceeds of which will be used to fund pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (ii) Restricted Payments not to exceed up to 6.00% per annum of the payment of interest Net Cash Proceeds received by (or contributed to) the Parents, the Borrowers and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected Restricted Subsidiaries from such Qualifying IPO;
(m) [reserved];
(n) the Closing Date Restricted Payment;
(o) the Permitted Distribution Business Disposition;
(p) Restricted Payments in an amount not to include such amounts exceed $12,000,000 annually;
(q) in its Consolidated Interest Expense by delivering an irrevocable written notice addition to the Administrative Agent stating that foregoing Restricted Payments, the Borrower will Parents, the Borrowers or any Restricted Subsidiary may make such dividends and distributions (the “additional Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default the Payment Conditions shall have occurred and be continuing or would result therefrom; and
(l) been satisfied on a Pro Forma Basis at the declaration and payment time of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payments.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments with respect to any class of its Equity Interests; provided, in the case of non-wholly-owned Restricted Subsidiaries, the share of the foregoing made or paid to the Borrower and to other or any of the Restricted Subsidiaries and (ii) each is at least pro rata to the percentage of such class of Equity Interests in such non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments to owned by the Borrower and any its other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsSubsidiaries;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Personthe Borrower;
(c) the Borrower may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, 1) no Event of Default has occurred and is continuing or contemplated by, the Transaction Agreementwould result therefrom and (2) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the Transactions) in connection with, Leverage Ratio calculated on a Pro Forma Basis is less than or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoequal to 3.50:1.00;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)) or Section 7.08 (other than Section 7.08(k);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings, the Borrower and its the Restricted Subsidiaries Subsidiaries;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed the Available Amount; provided that with respect to any such Restricted Payment made in reliance on the Growth Amount (i) the Borrower would be in Pro Forma Compliance with the covenants set forth in Section 7.10, in each case such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and Holdings the Lenders (either pursuant to Section 6.01(a) or 6.01(b) or in a subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such Restricted Payments) and (ii) at such time no Event of Default shall have occurred and be continuing or would result therefrom;
(h) the Borrower may repurchase (or make a Restricted Payment to permit any direct or indirect parent of the Borrower to repurchase) its (or the such parent’s) common stock from directors, officers, members of management and employees in an aggregate purchase amount of up to $5,000,000 in any calendar year (with the unused amount in any fiscal year under this clause (h) permitted to increase the amount permitted under this clause (h) for up to the immediately succeeding two fiscal years);
(i) so long as no Event of Default shall have occurred and be continuing (or would result therefrom), the Borrower may make a corresponding Restricted Payment Payments in an aggregate amount of up to $25,000,000 in any fiscal year of the Borrower; provided that the Borrower would be in Pro Forma Compliance with the covenant set forth in Section 7.10(a), in each case such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or 6.01(b) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such Restricted Payments);
(j) the Borrower may make additional Restricted Payments in an aggregate amount (when aggregated with any Investments made pursuant to Section 7.02(s) and any Restricted Prepayments made pursuant to Section 7.11(d)) not to exceed $100,000,000 during the term of this Agreement; provided that no Event of Default shall have occurred and be continuing or would result therefrom;
(k) the Borrower may make Restricted Payments to any direct or indirect parent thereofof the Borrower, including Parent:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in including any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such parent, in each case attributable to the ownership or operations of the Borrower and its the Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereofii) to pay its franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iviii) if a which shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Holdings Election Event or any other direct or indirect parent company of the Borrower, including Parent.
(l) the Borrower and any of the Restricted Subsidiaries may make Restricted Payments in cash to Holdings from the proceeds of Indebtedness incurred on the Closing Date to the extent necessary to facilitate any payments made on the Closing Date or substantially contemporaneously therewith in connection with the Transactions;
(m) the Borrower may make Restricted Payments in cash to Holdings the proceeds of which shall occurbe used to make (or to enable any direct or indirect parent company to make) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Parent, Holdings or any of its Subsidiaries;
(n) the Borrower may make Restricted Payments to Holdings (or any direct or indirect parent company of the Borrower) to finance any Investment permitted to be made pursuant to Section 7.027.02 as if such Investment were made by the Borrower or any Restricted Subsidiary; provided that (Ai) such Restricted Payment Payments shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings (or such parent company) shall, immediately promptly following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed as equity to the Borrower or its a Restricted Subsidiaries Subsidiary or (2B) the merger merger, consolidation or amalgamation (to the extent permitted in Section 7.04hereunder) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, Investment; and
(o) the Borrower shall cause may make (or may make Restricted Payments to any direct or indirect parent company of the requirements Borrower to enable it to make) Restricted Payments with respect to any Equity Interests in an amount up to 6.00% of Section 6.11 the net cash proceeds received by or contributed to be complied with, within the time periods specified therein Borrower from the IPO;
(p) the Borrower may make distributions to Holdings (to allow Holdings to make tax distributions to its beneficial owners (including Parent)) in amounts equal to each beneficial owner of Holdings’ share of the extent required taxable income of Holdings multiplied by an assumed tax rate equal to the Collateral highest combined marginal Federal, state and Guarantee Requirementlocal income tax rate applicable to a U.S. corporation (taking into account the character of any portion of such income as ordinary income or capital gain); and
(vq) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with to Parent (or to Holdings to further distribute to Parent) for purposes of making payments contemplated to be made by Parent pursuant to the proceeds LPS Notes Guarantee Fee Agreement (as in effect of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiarydate hereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower may (i) redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or Section 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof (including Holdings) to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower or any such direct or indirect parent thereof (including Holdings) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any US-DOCS\79529473.13 other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $45,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Fourth A&R Refinancing Effective Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings or any other direct or indirect parent of the Borrower (to the extent contributed to the Borrower), the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided, further, that cancellation of Indebtedness owing to Holdings or the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (f) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as of the Third A&R Refinancing Effective Date.
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) so long as the proceeds Borrower is treated as a pass-through entity of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any such direct or indirect parent thereof) attributable to Holdingsis an owner or a partner, or is a member of a consolidated or combined group that includes such direct or indirect parent, for U.S. federal, state or local income tax purposes, the Borrower may pay to such direct or its Subsidiaries determined indirect parent the amount of U.S. federal, state and local income taxes, as if the case may be, incurred by such direct or indirect parent but only to the extent such income taxes are attributable to the income of the Borrower and its Subsidiaries filed separately;(excluding any Subsidiaries that are neither a pass-through entity nor a member of a consolidated or a combined group that includes a direct or indirect parent); provided that the amount of such payments in any fiscal year does not US-DOCS\79529473.13 exceed the amount that the Borrower and such Subsidiaries would have been required to pay in respect of such federal, state and local taxes for such fiscal year if the Borrower and such Subsidiaries were members of a consolidated or combined group of which the Borrower was the common parent corporation.
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay the Borrower’s pro rata share of any franchise taxes and other fees, taxes and expenses required to maintain its (or so long as its direct or indirect parents directly or indirectly own no other assets than the Equity Interest in the Borrower any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; US-DOCS\79529473.13
(i) Restricted Payments so long as at the time of such Restricted Payments (after giving Pro Forma Effect to such additional Restricted Payments) the Total Leverage Ratio shall be no greater than 3.50 to 1.00;
(j) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(k) the declaration and payment of dividends on the Borrower’s common stock of up to the greater of (i) 6% per annum of the net proceeds contributed to the Borrower from the initial public offering of the common stock of Parent and (ii) the amount of the Available Amount that is Not Otherwise Applied;
(l) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hm) Restricted Payments in an amount equal to any reduction in taxes actually realized by the Borrower and the Restricted Subsidiaries in the form of refunds or credits or from deductions when applied to offset income or gain as a direct result of (i) Transaction Expenses or (ii) commitment and other financing fees;
(n) [reserved]; and
(o) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(v) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (ho), not to exceed the sum of (Ai) the greater of $75,000,000 and 2% of Total Assets, (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0ii) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant the Net Cash Proceeds of Permitted Equity Issuances contributed to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower that are Not Otherwise Applied and (iii) if the Senior Secured Leverage Ratio (after giving Pro Forma Effect to such additional Restricted Subsidiaries in Payments) is no greater than 4.25 to 1.00 and without duplication of clause (ii) above, the form amount of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount that is Not Otherwise Applied. Notwithstanding anything to the contrary herein, the Borrower may will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Payment consisting of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as proceeds from a lender or financier under any financing provided to a Receivables Management Subsidiary).Qualified Securitization Financing. US-DOCS\79529473.13
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except, subject to the provisions of the last paragraph of Section 9.14:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.039.3) of such Person;
(c) Restricted Payments used to fund the Transaction and the payment of any fees and expenses incurred in connection with the Transaction (including or owed by the Borrower or any amounts to be paid under, direct or contemplated by, indirect parent of the Transaction Agreement) and Borrower or the fees and expenses related thereto owed Restricted Subsidiaries to Affiliates, and any other payments made, including any payment such payments made to holders of Equity Interests any direct or indirect parent of the Borrower (immediately prior to giving effect enable it to make payments in connection with the consummation of the Transaction or as contemplated by the Acquisition Documents, whether payable on the Effective Date or thereafter, in each case, to the Transactions) in connection with, or as a result of, their exercise of appraisal rights extent permitted by Section 9.8 and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoset forth on Schedule 9.6(c);
(d) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 9.2 (other than Section 7.08(f9.2(e) or (l)), or 9.4 (other than a merger, amalgamation or consolidation of Holdings and the Borrower);
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any direct or indirect parent of Holdings) held directly or indirectly by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, estate or tax planning entities, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or any agreement or arrangement with any employee, director or consultant of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries in an aggregate amount after the Effective Date together with the aggregate amount of loans and its advances to Holdings made pursuant to Section 9.2(l) in lieu of Restricted Payments permitted by this clause (f) not to exceed $10,000,000 in any calendar year (with any unused amounts in any calendar year being carried over to the two immediately succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year); provided, that such amount in any calendar year may be increased by an amount not to exceed the sum of:
(i) the cash proceeds of key man life insurance policies received by the Borrower, any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) or any of the Restricted Subsidiaries after the Effective Date, other than in connection with, or pursuant to, the Equity Contribution; plus
(ii) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Qualified Equity Interests (other than any amount designated as a Cure Amount or any amount increasing the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to members of management, directors or consultants of the Borrower and the Restricted Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Effective Date; plus
(iii) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of the Borrower or any of the Restricted Subsidiaries or any of the Borrower’s direct or indirect parents in connection with the Transaction that are foregone in return for the receipt of Equity Interests of the Borrower or any of its direct or indirect parents; minus
(iv) the aggregate amount of Restricted Payments previously made with the cash proceeds described in foregoing clauses (i), (ii), and (iii);
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) foreign, federal, state or local income taxes (as the tax liability to each relevant jurisdiction case may be) imposed directly on such parent in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such income tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Restricted Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Restricted Subsidiaries as a stand-alone group), reduced by any such taxes paid or to be paid directly by the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay operating costs and expenses of Holdings or its direct or indirect parents incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties)expenses, which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) the extent attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its such direct or indirect parents’parent’s) corporate existenceexistence to the extent attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.029.2; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment (and no earlier than one (1) Business Day prior to the closing of such Investment), (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger merger, consolidation, amalgamation, conversion, winding up or Disposition (to the extent permitted in Section 7.049.4) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted AcquisitionInvestment, and in each case, in accordance with the requirements of Sections 8.11, 8.13 and 9.2, (C) such direct or indirect parent company and its Affiliates (other than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction, except to the extent the Borrower or a Restricted Subsidiary could have given such consideration or made such payment in compliance with Section 9.8, (D) any property received by the Borrower shall cause not increase the requirements Available Amount pursuant to clause (c) of the definition thereof and (E) such Investment shall be deemed to be made by the Borrower or such Restricted Subsidiary pursuant to a provision of Section 6.11 to be complied with, within the time periods specified therein 9.2 (to the extent required by the Collateral and Guarantee Requirementother than clause (o) thereof); and;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementof such parent;
(vi) the proceeds of which (A) shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 9.8(c), (g) and (i) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); and
(vii) the proceeds of which shall be used to pay interest and/or principal on Indebtedness the proceeds of which Indebtedness have been contributed to the Borrower or any of its Restricted Subsidiaries and that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower incurred in accordance with Section 9.3 and any such interest in respect of such Indebtedness paid or required to be paid by the Borrower or any of its Restricted Subsidiaries is included in Consolidated Interest Expense;
(h) Holdings, the Borrower or any of the Restricted Subsidiaries may pay for cash in lieu of the repurchase, retirement issuance of fractional Equity Interests upon the exercise of options or other acquisition warrants or retirement for value the conversion or exchange of Equity Interests of any such Person or such Person’s direct or indirect parents;
(i) the declaration and payment of dividends on the Borrower’s common stock (or a dividend or other distribution to any direct or indirect parent of the Borrower to fund the payment by such direct or indirect parent of the Borrower of dividends on such entity’s common stock) following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Effective Date, of up to 6.0% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or Form S-8 and other than any public sale constituting an Excluded Contribution;
(j) repurchases of Equity Interests (i) deemed to occur upon the non-cash exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar Taxes payable directly or indirectly by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, estate or tax planning entities, heirs, legatees or distributes of any of the Borrower or any foregoing), including deemed repurchases in connection with the exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing or would result therefromwithout duplication of any other clauses of this Section 9.6, the Borrower may make additional other Restricted Payments in an aggregate amount, together when combined with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings any Investments made pursuant to under Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h9.2(m), not to exceed the sum greater of $40,000,000 and 2.0% of Total Assets (Ameasured at the time made);
(l) Restricted Payments out of the Available Amount so long as the Payment Conditions shall have been satisfied with respect thereto;
(m) Restricted Payments made with the proceeds of Excluded Contributions; provided that (i) the aggregate amount of such Restricted Payments does not exceed $75,000,000 10,000,000 in any Fiscal Year, (ii) no Event of Default would result immediately thereafter from the making of any such Restricted Payment, (iii) each such Restricted Payment shall be made within one year following the receipt of the related Excluded Contributions, and (iv) there is no increase in the Revolving Credit Outstandings immediately after giving effect thereto.
(n) Restricted Payments by the Borrower, including to a direct or indirect parent of the Borrower, for the purpose of funding the obligation to repurchase shares pursuant to the Rollover Investor Put in an aggregate amount not to be increased exceed $37,500,000; provided that, with respect to $100,000,000 upon such Restricted Payment pursuant to this clause (n), at the time of such Restricted Payment and after giving pro forma effect thereto, the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 would not exceed 3.25 to 1.0) and (B) the Cumulative Growth Amount1.00;
(o) the payment of any dividend or distribution within sixty (60) days after the date of declaration thereof, if at the date of declaration (i) so long as such payment would have complied with the provisions of this Agreement and (ii) no Event of Default shall have occurred and be continuing was continuing;
(p) payments or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made distributions to dissenting stockholders pursuant to Section 7.02(v)) not applicable Law, pursuant to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAcquisition Documents; and
(lq) the declaration and payment distribution, by dividend or otherwise, of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice of, or Indebtedness owed to the extent such holder (Borrower or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Subsidiary by, Unrestricted Subsidiaries.
Appears in 1 contract
Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to any other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and or any such other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on ratably according to their relative ownership interests of the relevant class of Equity InterestsInterests or as otherwise required by the applicable Organization Documents);
(b) the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by to be incurred under Section 7.03) of such Person;
(c) Restricted Payments made pursuant to the Acquisition Agreement (as in effect on the Closing Date) in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(o)), 7.04 (other than a merger or consolidation involving the Borrower) or 7.07 (other than Section 7.07(a), (j) or (k));
(e) repurchases Restricted Payments in respect of the repurchase of Equity Interests in Holdings (or any Parent Entity of Holdings that only owns Equity Interests, directly or indirectly, in the Borrower and its Subsidiaries), the Borrower or any Restricted Subsidiary deemed to that occur upon or in connection with the exercise of stock options or warrants or similar rights if such Equity Interests Restricted Payments represent a portion of the exercise price of such options or warrantswarrants or similar rights or tax withholding obligations with respect thereto;
(f) Restricted Payments of Equity Interests in, Indebtedness owing from and/or other securities of or Investments in, any Unrestricted Subsidiaries (other than any Unrestricted Subsidiaries the assets of which consist solely of cash or Cash Equivalents received from an Investment by the Borrower and/or any Restricted Subsidiary into it);
(g) the Borrower may pay (or make Restricted Payments to allow Holdings or any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any Parent Entity) held by any Management Stockholder, including pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of the Borrower (or any Parent Entity) or any of its Subsidiaries; provided, the aggregate Restricted Payments made pursuant to this Section 7.06(g) after the Closing Date together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(j) in lieu of Restricted Payments permitted by this clause (g) shall not exceed:
(i) the greater of (A) 12.50% of Closing Date EBITDA (i.e., $21,825,000) and (B) 12.50% of TTM Consolidated Adjusted EBITDA as of the applicable date of measurement in any calendar year, with unused amounts in any calendar year being carried over to succeeding calendar years; plus
(ii) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; plus
(iii) to the extent contributed in cash to the common Equity Interests of the Borrower and Not Otherwise Applied, the proceeds from the sale of Equity Interests of Holdings or any Parent Entity, in each case to a Person that is or becomes a Management Stockholder that occurs after the Closing Date; plus
(iv) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former Company Person that are foregone in return for the receipt of Equity Interests of Holdings or a Parent Entity, Borrower or any Restricted Subsidiary; plus
(v) payments made in respect of withholding or other similar taxes payable upon repurchase, retirement or other acquisition or retirement of Equity Interests of Holdings or a Parent Entity or its Restricted Subsidiaries or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement;
(h) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofParent Entity:
(i) the proceeds of which will be used to pay (or make dividends or distributions to allow any direct or indirect corporate parent (or entity treated as a corporation for Tax purposes) thereof to pay) the tax Tax liability (including estimated Tax payments) to each relevant foreign, federal, state or local jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of which a Tax return is filed by Holdings (or any such direct or indirect corporate parent) that includes the Borrower and/or any of its Subsidiaries (including in the case where the Borrower and any Subsidiary is a disregarded entity for income Tax purposes), to the extent such Tax liability does not exceed the lesser of (A) the Taxes (including estimated Tax payments) that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone Tax group (assuming that the Borrower was classified as a corporation for income Tax purposes) and (B) the actual Tax liability (including estimated Tax payments) of Holdings’ Tax group (or, if Holdings is not the parent thereofof the actual group, the Taxes that would have been paid by Holdings (assuming that Holdings was classified as a corporation for income Tax purposes), the Borrower and/or the Borrower’s Subsidiaries as a stand-alone Tax group), reduced in the case of clauses (A) attributable and (B) by any such Taxes paid or to Holdings, be paid directly by the Borrower or its Subsidiaries determined as if Subsidiaries; provided that in the case of any such distributions attributable to Tax liability in respect of income of an Unrestricted Subsidiary, the Borrower and shall use all commercially reasonable efforts to cause such Unrestricted Subsidiary (or another Unrestricted Subsidiary) to make cash distributions to the Borrower or its Restricted Subsidiaries filed separatelyin an aggregate amount that the Borrower determines in its reasonable discretion is necessary to pay such Tax liability on behalf of such Unrestricted Subsidiary;
(ii) the proceeds of which shall will be used by Holdings to pay (or make Restricted Payments to allow any direct Parent Entity to pay) operating costs and expenses (including, following the consummation of a Qualifying IPO, Public Company Costs) of Holdings or indirect parent thereof) to pay operating expenses any Parent Entity incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall will be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’such Parent Entity’s) corporate or legal existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings and the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary (which shall be a Restricted Subsidiary to the extent required by Section 7.02) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into by the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andInvestment;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent Entity to pay) costs, fees and expenses (other than to Affiliates) related to any successful or unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which (A) will be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any Parent Entity, including any compensation contemplated by the definitive documents of the Acquisition Transaction to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) will be used to make payments permitted under Sections 7.07(e), (h), (k) and (q) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);
(gi) Restricted Payments (i) made in connection with the payment cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition or other transaction permitted by the Loan Documents or (ii) to honor any conversion request by a holder of convertible Indebtedness and to make cash payments in lieu of fractional shares in connection therewith;
(j) the declaration and payment of dividends on the Borrower’s, Holdings’ or a Parent Entity’s common stock following the first public offering of the Borrower’s common stock or the common stock of any Parent Entity after the Closing Date, of up to the greater of (A) 6% per annum of the net proceeds received by or contributed to the Borrower may pay for in or from any such public offering, other than public offerings with respect to the repurchaseBorrower’s common stock registered on Form S-4 or Form S-8, retirement or other acquisition or retirement for value and (B) an amount equal to 6% of the Market Capitalization at the time of such public offering;
(k) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the Borrower exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards;
(l) payments or 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 a merger, consolidation, transfer of assets or other transaction permitted by the Loan Documents;
(m) payments or distributions of a Restricted Payment within 60 days after the date of declaration thereof if at the date of declaration such Restricted Payment would have been permitted hereunder;
(n) Restricted Payments (not consisting of cash or Cash Equivalents) made in lieu of fees or expenses (including by way of discount), in each case in connection with any Qualified Securitization Financing permitted under Section 7.01;
(o) the Borrower may (or may make Restricted Payments to permit any Parent Entity to) (i) redeem, repurchase, retire or otherwise acquire in whole or in part any Equity Interests of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan Restricted Subsidiary or any Equity Interests of any Parent Entity (“Treasury Equity Interests”), in exchange for, or with the proceeds (to the extent contributed to Holdings or the Borrower substantially concurrently) of the sale or issuance (other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of than to the Borrower or any Restricted Subsidiary) of, other Equity Interests or rights to acquire its Equity Interests (“Refunding Equity Interests”) and (y) declare and pay dividends on any Treasury Equity Interests out of any such proceeds;
(p) redemptions in whole or in part of any of its Subsidiaries; providedEquity Interests for another class of its Equity Interests (other than Disqualified Equity Interests, however, that except to the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of extent issued by the Borrower $15,000,000 to a Restricted Subsidiary) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (which and in no event shall such contribution or issuance so utilized increase to $20,000,000 subsequent the Available Amount) (other than Disqualified Equity Interests, except to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject extent issued by the Borrower to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPORestricted Subsidiary);
(hq) so long Restricted Payments constituting or otherwise made in connection with or relating to any Permitted Reorganization; provided that if immediately after giving Pro Forma Effect to any such Permitted Reorganization and the transactions to be consummated in connection therewith, any distributed asset ceases to be owned by the Borrower or another Restricted Subsidiary (or any entity ceases to be a Restricted Subsidiary), the applicable portion of such Restricted Payment must be otherwise permitted under another provision of this Section 7.06 (and constitute utilization of such other Restricted Payment exception or capacity);
(r) Restricted Payments; provided that the First Lien Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) shall be less than or equal to the Restricted Payment Incurrence Ratio Level; provided that no Specified Event of Default has occurred or is continuing or would result therefrom; and
(s) the Borrower may make Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) in an aggregate amount not to exceed the sum of,
(i) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of such Restricted Payment; and
(ii) the greater of (A) 62.50% of Closing Date EBITDA (i.e., $109,125,000) and (B) 62.50% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination; provided, in each case, that no Event of Default shall have occurred and be continuing or would result therefrom. The amount set forth in Section 7.06(s)(ii) may, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted Payments, be utilized by this clause (h), not the Borrower or any Restricted Subsidiary to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default make or hold any Investments without regard to Section 7.02 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof any Junior Financing without regard to Section 7.09(a). The amount of any Restricted Payment at any time shall have occurred be the amount of cash and be continuing the fair market value of other property subject to the Restricted Payment at the time such Restricted Payment is made. For purposes of determining compliance with this Section 7.06, in the event that any Restricted Payment (or would result therefromany portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrommay, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to sole discretion, at the Administrative Agent stating that the Borrower will make time of such dividends and distributions Restricted Payment is made, divide, classify or reclassify, or at any later time divide, classify, or reclassify, such Restricted Payment (the “Restricted Payments Interest Expense Election”or any portion thereof) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions any manner that complies with this covenant on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent date such holder (Restricted Payment is made or its affiliates) participates in the Receivables Management Business (including such later time, as a lender or financier under any financing provided to a Receivables Management Subsidiary)applicable.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments with respect to any class of its Equity Interests; provided, in the case of non-wholly-owned Restricted Subsidiaries, the share of the foregoing made or paid to the Borrower and to other or any of the Restricted Subsidiaries and (ii) each is at least pro rata to the percentage of such class of Equity Interests in such non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments to owned by the Borrower and any its other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsSubsidiaries;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Personthe Borrower;
(c) the Borrower may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, 1) no Event of Default has occurred and is continuing or contemplated by, the Transaction Agreementwould result therefrom and (2) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the Transactions) in connection with, Leverage Ratio calculated on a Pro Forma Basis is less than or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoequal to 3.50:1.00;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)) or Section 7.08 (other than Section 7.08(k);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings, the Borrower and its the Restricted Subsidiaries Subsidiaries;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed the Available Amount; provided, that with respect to any such Restricted Payment made in reliance on the Growth Amount (i) the Borrower would be in Pro Forma Compliance with the covenants set forth in Section 7.10, in each case such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and Holdings the Lenders (either pursuant to Section 6.01(a) or 6.01(b) or in a subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such Restricted Payments) and (ii) at such time no Event of Default shall have occurred and be continuing or would result therefrom;
(h) the Borrower may repurchase (or make a Restricted Payment to permit any direct or indirect parent of the Borrower to repurchase) its (or such parent’s) common stock from directors, officers, members of management and employees in an aggregate purchase amount of up to $7,000,000 in any calendar year (with the unused amount in any fiscal year under this clause (h) permitted to increase the amount permitted under this clause (h) for up to the immediately succeeding two fiscal years);
(i) so long as no Event of Default shall have occurred and be continuing (or would result therefrom), the Borrower may make a corresponding Restricted Payment Payments in an aggregate amount of up to $35,000,000 in any fiscal year of the Borrower; provided, that the Borrower would be in Pro Forma Compliance with the covenant set forth in Section 7.10(a), in each case such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or 6.01(b) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such Restricted Payments);
(j) the Borrower may make additional Restricted Payments in an aggregate amount (when aggregated with any Investments made pursuant to Section 7.02(s) and any Restricted Prepayments made pursuant to Section 7.11(d)) not to exceed $150,000,000 during the term of this Agreement; provided, that no Event of Default shall have occurred and be continuing or would result therefrom;
(k) the Borrower may make Restricted Payments to any direct or indirect parent thereofof the Borrower, including Parent:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereofl) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in including any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such parent, in each case attributable to the ownership or operations of the Borrower and its the Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereofi) to pay its franchise taxes and other fees, taxes and expenses required to maintain its corporate existence; and/or
(ii) which shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Holdings or any other direct or indirect parent company of the Borrower, including Parent.
(iii) the Borrower and any of the Restricted Subsidiaries may make Restricted Payments in cash to Holdings from the proceeds of Indebtedness incurred on the Closing Date to the extent necessary to facilitate any payments made on the Closing Date or substantially contemporaneously therewith in connection with the Transactions;
(m) the Borrower may make Restricted Payments in cash to Holdings the proceeds of which shall be used to make (or to enable any direct or indirect parent company to make) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Parent (or any other direct or indirect parent company of the Borrower), Holdings or any of its Subsidiaries;
(n) the Borrower may make Restricted Payments to Holdings (or any direct or indirect parents’parent company of the Borrower) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.027.02 as if such Investment were made by the Borrower or any Restricted Subsidiary; provided provided, that (Ai) such Restricted Payment Payments shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings (or such parent company) shall, immediately promptly following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed as equity to the Borrower or its a Restricted Subsidiaries Subsidiary or (2B) the merger merger, consolidation or amalgamation (to the extent permitted in Section 7.04hereunder) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)Investment; and
(vo) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings Borrower may make (or may make Restricted Payments to any direct or indirect parent thereofcompany of the Borrower to enable it to make) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related with respect to any unsuccessful equity or debt offering permitted by this Agreement;Equity Interests in an amount per annum up to 5.00% of market capitalization; and
(gp) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value make distributions to Holdings (to allow Holdings to make tax distributions to its beneficial owners (including Parent)) in amounts equal to each beneficial owner of Equity Interests Holdings’ share of the Borrower taxable income of Holdings multiplied by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent an assumed tax rate equal to the consummation of a Qualifying IPOhighest combined marginal Federal, with unused amounts in any calendar year being carried over to succeeding calendar years subject state and local income tax rate applicable to a maximum U.S. corporation (without giving effect to taking into account the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day character of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long portion of such income as no Default shall have occurred and be continuing ordinary income or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiarycapital gain).
Appears in 1 contract
Restricted Payments. Declare Except for transactions between or makeamong Loan Parties, directly neither Holdings nor the Borrower will (nor will they permit any of the Restricted Subsidiaries to) declare or indirectlymake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of Equity Interests of Holdings or any of the Restricted PaymentSubsidiaries, exceptor purchase, redeem or otherwise acquire for value (or permit any of the Restricted Subsidiaries to do so) any shares of any class of Equity Interests of Holdings or any of the Restricted Subsidiaries or any warrants, rights or options to acquire any such shares, now or hereafter outstanding (collectively, “Restricted Payments”), except that:
(a) (i) each Restricted Subsidiary may (i) make Restricted Payments to the Borrower Holdings and to other Restricted Subsidiaries and that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests a pro rata basis to the holders of its Equity Interests or on a greater than ratable basis to the relevant class of Equity Interests;
extent such greater payments are made solely to Holdings or a Restricted Subsidiary) and (bii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(db) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 6.08, 6.11 and 6.12 (other than Section 7.08(f6.12(b));
(ec) repurchases of Equity Interests in Holdings and the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make additional Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 the portion, if any, of the Available Amount as of such time that Holdings or the Borrower elects to apply to this Section 6.06(c), such election to be specified in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers a written notice of a Financial Officer of Holdings (or any direct or indirect parent thereof) attributable calculating in reasonable detail the amount of Available Amount immediately prior to such election and the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted amount thereof elected to be made pursuant to Section 7.02so applied; provided that (Ai) before and after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to any such Restricted Payment, the Leverage Ratio is equal to or less than 3.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment shall be made substantially concurrently with and the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted pro forma adjustments described in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement1.07;
(gd) Holdings and the Borrower Restricted Subsidiaries may make (i) Restricted Payments under this clause (d) and (ii) Investments pursuant to Section 6.08(k) in an aggregate amount (taken together) not to exceed $250,000,000 in any fiscal year; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom; [[3596554]]
(e) Holdings may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or director consultant of the Borrower Holdings or any of its the Subsidiaries pursuant to (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiariesforegoing); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to under this clause (fe) does not exceed in any fiscal year does not exceed (x) $30,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from the immediately preceding fiscal year (not including any fiscal year ending prior to 2017) which was not expended by the Borrower $15,000,000 for Restricted Payments in such fiscal year (which shall increase to $20,000,000 subsequent the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the consummation previous fiscal year shall be deemed to have been utilized first by any Restricted Payments made under this clause (e) in such fiscal year);
(f) Holdings may repurchase Equity Interests of Holdings upon the cashless exercise of stock options, warrants or other convertible securities as a Qualifying IPOresult of Holdings accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(g) Holdings and any Restricted Subsidiary may pay cash payments in lieu of fractional shares in connection with unused amounts in (i) any calendar year being carried over to succeeding calendar years subject to a maximum dividend, split or combination of its Equity Interests or any Permitted Acquisition (without giving effect to or similar Investment) or (ii) the following proviso) exercise of $30,000,000 in warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any calendar year (which shall increase to $40,000,000 subsequent to of the consummation of a Qualifying IPO)Subsidiaries;
(h) Holdings and any Restricted Subsidiary may make repurchases of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay Taxes related to the exercise of such Equity Interests;
(i) Holdings and the Restricted Subsidiaries may make any additional Restricted Payments so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being is equal to or less than 5.0 3.00 to 1.0) 1.00 on a pro forma basis after giving effect to such Restricted Payment and (B) the Cumulative Growth Amount;pro forma adjustments described in Section 1.07; and
(ij) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Acquisition Transactions;
, (ji) so long as no Default shall have occurred Leidos may make the Leidos Special Dividend and be continuing or would result therefrom, the (ii) Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Spinco Special Cash Payment.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other the Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee, director, officer, consultant or distributor (or any Controlled Investment Affiliate or Immediate Family Member of any of the foregoing) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any future, present or former employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer, consultant or distributor of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and its interest payable on any notes issued by the Parent Borrower (or of any direct or indirect parent of the Parent Borrower) in connection with any such repurchase, retirement or other acquisition or retirement); provided, further, that the cancellation of Indebtedness owing to the Parent Borrower from any future, present or former employees, directors, officers, managers, or consultants of the Parent Borrower (or their respective Controlled Investment Affiliate or Immediate Family Member), any direct or indirect parent company of the Parent Borrower or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Parent Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this or any other provision of this Agreement;
(g) the Parent Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in not prohibited by Section 7.04) of the Person formed or acquired into the Parent Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted not prohibited by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries;
(gh) the Parent Borrower or any of the Restricted Subsidiaries may (i) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within sixty (60) days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement options; and
(including any stock subscription or shareholder agreementl) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Parent Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(i)(D) and (ii) loans and advances the aggregate outstanding amount of Investments made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.02(o)(iii), not to exceed the sum of (Ai) the greater of $75,000,000 35,000,000 and 3.0% of Total Assets, in each case determined at the time of such Restricted Payment, and (such amount to be increased to $100,000,000 upon ii) if the Total Leverage Ratio as of calculated on a pro forma basis for such Restricted Payment for the last day of any most recently ended Test Period being less than 5.0 does not exceed 4.25 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the TransactionsAvailable Amount at such time;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Samples: Credit Agreement (Axcan Intermediate Holdings Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower may make Restricted Payments in connection with the Transaction cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (including other than Net Cash Proceeds constituting any amounts Cure Amount), except to be paid underthe extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately other satisfactions prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement maturity of any claims Junior Financing pursuant to Section 7.13 or actions (whether actual, contingent or potential) with respect theretoto make previous Restricted Payments pursuant to this Section 7.06(c);
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 7.02, 7.04, 7.08 or 7.08 other than Section 7.08(f)7.13;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to HoldingsHoldings (or, in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any such Restricted Payments made pursuant to sub-clause (iv), sub-clause (vii) or sub-clause (viii) below, no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom:
(i) so long as the Borrower is a member of a consolidated, combined or unitary group of which Holdings may make a corresponding Restricted Payment to (or any direct or indirect parent thereof:
(ientity of Holdings) is the parent for foreign, federal, state or provincial or local income tax purposes, the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any direct or indirect parent thereofentity of Holdings) attributable to Holdings, that includes the Borrower or and its Subsidiaries determined as if Subsidiaries, to the extent such tax liability does not exceed the lesser of (x) the taxes that would have been payable by the Borrower and its Subsidiaries filed separatelyas a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of Holdings) consolidated, combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay (a) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 1,725,000 in any fiscal year 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its SubsidiariesRestricted Subsidiaries or (b) the fees and other amounts described in Section 7.08(d) to the extent that the Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly;
(iii) the proceeds of which shall be used by Holdings to pay its (or any to make a Restricted Payment to its direct or indirect parent thereofto enable it to pay) to pay franchise taxes and other fees, similar taxes and other expenses required necessary to maintain its corporate existence;
(iv) the proceeds of which will be used to repurchase the Equity Interests or phantom Equity Interests (including stock appreciation rights and similar incentive or deferred compensation instruments) of Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interests or phantom Equity Interests) from directors, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in an aggregate amount not in excess of $23,000,000 in any calendar year; provided, that the Borrower may carry over and make in any subsequent calendar year or years, in addition to the amount for such subsequent calendar year, the amount not utilized in the prior calendar year or years up to a maximum of $23,000,000 with respect to such subsequent calendar year; provided, further, that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance maintained by Holdings (or its direct or indirect parent), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) to the extent contributed in cash to the common equity of the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parents’) corporate existenceparent companies that occurs after the Closing Date;
(ivv) the proceeds of which are applied to the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person that, provided that if such purchase or other acquisition had been made by the Borrower, it would have constituted a Holdings Election Event shall occur, to finance any Investment “Permitted Acquisition” permitted to be made pursuant to Section 7.02; provided provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchase or other acquisition;
(vvi) if a repurchases of Equity Interests of Holdings Election Event shall occur, deemed to occur upon the non-cash exercise of stock options and warrants;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, management fees permitted by Section 7.08(d); and
(viii) the proceeds of which shall be used by Holdings to pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of Holdings (other than Affiliates that are bona fide investment banks), a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering permitted by any direct or indirect parent of Holdings, in each case directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(f) in addition to the foregoing Restricted Payments, additional Restricted Payments in an aggregate amount not to exceed the sum of (1) an amount (which shall not be less than zero) equal to the greater of $23,000,000 and 1.725% of Consolidated Total Assets; plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this AgreementSection 7.06(f)(2), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied, provided that (in the case of this Section 7.06(f)(2)) immediately before and immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing;
(g) after a Qualifying IPO, Restricted Payments of up to 6% per annum of the Net Cash Proceeds contributed to the common equity of the Borrower may pay for from such Qualifying IPO; provided that immediately before and immediately after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing;
(h) Restricted Payments (including payments on stock appreciation rights) made on the repurchaseClosing Date or within 60 days thereafter, retirement or other acquisition or retirement for value in each case in connection with the Transactions and in accordance with the Acquisition Agreement;
(i) repurchases of Equity Interests of Holdings, the Borrower or any Restricted Subsidiary to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee employee, director, manager or director consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the Borrower or any foregoing) in connection with the exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hj) in addition to the foregoing Restricted Payments, additional Restricted Payments, so long as as, after giving effect on a Pro Forma Basis to any such Restricted Payment, (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (iiy) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as at the end of the last day most recently ended fiscal quarter of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant for which financial statements are available to Section 7.02(v)) does not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;5.00:1.00; and
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect consisting of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests proceeds of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Disposition permitted under Section 7.05(n), to the extent such holder (or its affiliates) participates made in accordance with the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Acquisition Agreement.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and to other Subsidiaries of the Borrower (and, in the case of a Restricted Subsidiaries and (ii) each Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments of the Borrower, to the Borrower and any other Restricted Subsidiary of the Borrower and to each other owner of Equity Interests of such Restricted Subsidiary of the Borrower based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary of the Borrower may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, warrants or warrants;other equity-based awards; CHAR1\1970297v6
(f) the Borrower and each Subsidiary of the Borrower may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Subsidiary of the Borrower (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, director, officer or consultant of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings or any parent thereof made pursuant to clause (25) of the definition of “Permitted Investments” in lieu of Restricted Payments permitted by this clause (f) shall not exceed (x) $10,000,000 in any calendar year (with 100% of the unused amounts in any calendar year being carried over to succeeding calendar years) and (y) $25,000,000 during the term of this Agreement; provided further that such amount in (x) and (y) may further be increased by an amount not to exceed:
(A) [reserved];
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower or any Subsidiary of the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed the greater of $20,000,000 and 20.0% of Consolidated EBITDA as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(iv));
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings its (or any direct or indirect parent thereofparent’s) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses CHAR1\1970297v6 (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make dividends or distributions to allow any direct or indirect parent thereofthereof to pay) to pay franchise and similar taxes and other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) (x) for any taxable period for which Holdings and Borrower are corporations (or are disregarded entities directly or indirectly owned by a corporation) for U.S. federal income tax purposes that are included in a consolidated, combined, unitary or similar tax group (a “Tax Group”) tax return for U.S. federal income tax purposes, distributions in amounts required for Holdings (if Holdings is the parent of such Tax Group) to pay, or distributions in amounts required for the parent of such Tax Group (if Holdings is not the parent of such Tax Group) to pay the aggregate amount of consolidated, combined, unitary or similar group tax liabilities owed by Holdings or the parent of such Tax Group, as applicable, and attributable to the income of Holdings, the Borrower and its subsidiaries (if Holdings is not the parent of such Tax Group) or attributable to the income of the Borrower and its subsidiaries (if Holdings is the parent of such Tax Group), reduced by any such taxes paid directly by Holdings, the Borrower or any of its subsidiaries to the relevant taxing authority; provided, that, if Holdings is not the parent of such Tax Group, the amount of such payments does not exceed the amounts that Holdings, the Borrower, and its subsidiaries would have been required to pay had Holdings, the Borrower, and its subsidiaries been a stand-alone group for applicable tax purposes, and if Holdings is the parent of such Tax Group, the amount of such payments does not exceed the amounts that the Borrower and its subsidiaries would have been required to pay had the Borrower and its subsidiaries been a stand-alone group for applicable tax purposes; (y) for any taxable period for which the Borrower is a partnership or disregarded entity (other than wholly-owned by a corporation) for US federal income tax purposes, any distributions from the Borrower in an amount sufficient to permit PHD Group Holdings, LLC (or such other direct or indirect parent partnership of the Borrower) to make pro rata distributions (in accordance with percentage interests) to its equity owners in an amount sufficient for each of them (or their direct or indirect owners) to pay their U.S. federal, state, and local taxes (including estimated taxes) with respect to income of the Borrower and its subsidiaries for each taxable year (determined (A) without regard to any adjustments under Section 743(b) or 734(b) of the Code and (B) taking into account any allocations under Section 704(c) of the Code and the Treasury Regulations thereunder), based on an assumed tax rate equal to the highest combined U.S. federal, state, and local tax rate applicable to an individual or corporation (whichever is higher) resident in New York, taking into account (A) the character and type of income earned (and for the avoidance of doubt, without regard to any reduction in rate attributable to Section 199A of the Code), (B) the net investment income tax under Section 1411 of the Code, and (C) any applicable limitations with respect to any deductions; and (z) distributions by the Borrower and Holdings to fund payments to satisfy obligations of the Parent under the Tax Receivable Agreement (which in the case of the structure described in clause (y) would need to be sufficient assuming all distributions from PHD Group Holdings, LLC (or such other direct or indirect parent partnership of the Borrower) would be made on a pro rata basis (in accordance with percentage interests)); provided, that distributions under this clause (z) shall be permitted with respect to a taxable period (or portion thereof) only to the extent that distributions under clauses (x) or (y), as applicable, with respect to such taxable period (or portion thereof) are insufficient for the Parent to comply with its obligations under the Tax Receivable Agreement after the payment of the 132 CHAR1\1970297v6 actual income tax liability of the Parent (such distributions described in this clause (iii), “Tax Distributions”);
(iv) if a Holdings Election Event shall occur, to finance any Investment Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 if made by the Borrower or any of its Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted the Subsidiaries of the Borrower or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if the proceeds of which (A) shall be used to pay salary, commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll social security or similar taxes thereof to the extent such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Subsidiaries of the Borrower or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Holdings Election Event shall occur, of the Borrower );
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments dividends or distributions to allow any direct or indirect parent thereof to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any direct or indirect parent thereof);
(gvii) to pay Public Company Costs; and
(viii) the Borrower may proceeds of which shall be used by Holdings to pay for the repurchase, retirement (or other acquisition to make dividends or retirement for value distributions to allow any direct or indirect parent thereof to pay) cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(i) payments made or expected to be made by Holdings, the Borrower or any of the Subsidiaries of the Borrower in respect of withholding or other payroll and other similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchase of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity based awards;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower[Reserved];
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions [Reserved];
(the “Restricted Payments Interest Expense Election”l) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom[Reserved]; and
(lm) additional Restricted Payments (the declaration proceeds of which may be utilized by Holdings to make additional dividends or distributions) so long as immediately after giving effect to such Restricted Payment, the Consolidated Total Net Rent Adjusted Leverage Ratio CHAR1\1970297v6 calculated on a Pro Forma Basis is less than or equal to 4.25 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Samples: Credit Agreement (Portillo's Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) (i) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date the Borrower delivers an irrevocable written notice to the Administrative Agent stating that the Borrower will make Restricted Payments in connection with the Transaction (including any amounts to Holdings that are used by Holdings solely to fund cash interest payments required to be paid under, or contemplated bymade by Holdings with respect to Indebtedness permitted to be incurred by Holdings pursuant to Sections 7.03(h),(j),(l) and (r) (the “Holdings Restricted Payments Election”), the Transaction Agreement) and the fees and expenses related thereto owed Borrower may make such Restricted Payments to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoHoldings;
(d) Restricted Payments made on the Closing Date to consummate the Transaction;
(e) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(fSections 7.08(a), (f) and (g));
(ef) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings (or, after a Qualifying IPO of the Borrower or an Intermediate Holding Company, the Borrower or such Intermediate Holding Company, as the case may be) may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any parent of Holdings or, after a Qualifying IPO of the Borrower or an Intermediate Holding Company, the Borrower or such Intermediate Holding Company, as the case may be) by any future, present or former employee or director of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Holdings or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) in any calendar year, when combined with the aggregate amount of all cash payments (whether principal or interest) made by the Loan Parties in respect of any promissory notes pursuant to Section 7.03(j) in such calendar year, shall not exceed $5,000,000 (or, after a Qualified IPO, $10,000,000), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(g) in any calendar year (after giving effect to such carry forward), when aggregated with the aggregate amount of cash payments made in respect of promissory notes pursuant to Section 7.03(j) in such calendar year (after giving effect to such carry forward), shall not exceed $10,000,000 (or, after a Qualified IPO, $20,000,000); provided, further, that such amount in any calendar year may be increased by an amount not to exceed the remainder of (x) the net cash proceeds of key man life insurance policies received by Holdings, the Borrower or any of its Restricted Subsidiaries after the Closing Date less (y) the aggregate amount of all Restricted Payments made after the Closing Date with the net cash proceeds described in preceding clause (x) less (z) the aggregate amount of all cash payments made in respect of any promissory notes pursuant to Section 7.03(j) after the Closing Date in reliance on the last proviso appearing in Section 7.03(j);
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofsuch parent) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereofof Holdings to pay) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a the proceeds of which shall be used by Holdings Election Event shall occur, to make Restricted Payments permitted to be made by Holdings pursuant to this Section 7.06;
(v) to finance any Investment permitted to be made pursuant to Section 7.027.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vii) with the proceeds of a Disposition of the KC Divestiture Trust Station pursuant to Section 7.05(n), the proceeds of which Restricted Payment may in turn be used by Holdings to make Restricted Payments to any direct parent of Holdings;
(gi) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amountamount not to exceed the sum of (A) when added together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (i), $25,000,000 and (B) when added together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii2) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hi), not to exceed $40,000,000 plus, in the case of each of clauses (A) and (B), the sum of (Ai) $75,000,000 the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (such amount other than Permitted Equity Issuances made pursuant to be increased to $100,000,000 upon Section 8.05) made after the Closing Date that are Not Otherwise Applied and (ii) if the Total Leverage Ratio as of the last day of any the immediately preceding Test Period being less than 5.0 (after giving Pro Forma Effect to 1.0such additional Restricted Payments) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing is 7.50:1 or would result therefromless, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;Cumulative Excess Cash Flow that is Not Otherwise Applied; and
(j) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance incurrence of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Permitted Holdings Debt permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary7.03(r).
Appears in 1 contract
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 6.16 (other than Section 7.08(fSections 6.16(e) and (j)), 7.02 (other than Sections 7.02(e) and (m)), or 7.04;
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower by or any other such direct or indirect parent thereof) from any future, present or former employee employee, officer, director, manager or director consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager, director, officer or director consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fg) does shall not exceed $50,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 100,000,000 in any calendar year); provided, further, that such amount in any calendar year (which shall increase may be increased by an amount not to $40,000,000 subsequent to the consummation of a Qualifying IPO);exceed:
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentsto the extent contributed to the Borrower, redemptionsthe net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, purchasesin each case to members of management, defeasances and other payments managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Amendment No. 5 Effective Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries after the Amendment No. 5 Effective Date; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in respect of Junior Financings made pursuant to Section 7.13(a)(ivclauses (i) and (ii) loans and advances made pursuant to of this Section 7.02(m7.06(g) in lieu of Restricted Payments permitted by this clause (h), not to exceed after the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Amendment No. 5
Appears in 1 contract
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company, and to other Restricted Subsidiaries and of the Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.00:1.00;
(e) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, director, member, partner, independent contractor or consultant stock option plan or benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $37,500,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company or any Subsidiary Guarantor, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors, members, partners, independent contractors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of Equity Interests of the Company or any of its direct or indirect parent companies pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) through (iii) of this Section 7.06(g);
(h) the Company may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i), when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (a) $330,000,000 and Holdings (b) 3.50% of Total Assets plus (ii) the Cumulative Credit on such date; provided that, in the case of clause (ii), with respect to usage of any portion of the Builder Basket, no Event of Default under Sections 8.01(a) or (f) has occurred and is continuing (or would result therefrom);
(i) the Company may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay the its operating or organizational costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Company and its Restricted Subsidiaries, any costs, expenses and liabilities incurred in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Company and its SubsidiariesRestricted Subsidiaries and listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.11, within (C) such parent company and its Affiliates (other than the time periods specified therein (Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent required the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall be deemed to be made by the Collateral and Guarantee RequirementCompany or such Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p); and);
(v) if a the proceeds of which shall be used to pay customary salary, bonus, severance, indemnity and other benefits payable to future, present or former officers, employees, managers, members, partners independent contractors or consultants of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement by Holdings (or any direct or indirect parent thereof), whether or not successful, that is directly attributable to the operations of the Company and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for Company or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon exercise or retirement for value vesting of Equity Interests of the Borrower by any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant of the Borrower Company or any Restricted Subsidiaries and any repurchases of its Subsidiaries pursuant Equity Interests deemed to any employee occur upon the exercise or director equity planvesting of stock options, employee warrants or director the issuance of restricted stock option plan units or any other employee or director benefit plan or any agreement (including any similar stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)based awards;
(hk) so long as no Default shall have occurred and be continuing the Company or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptionsdistribution, purchasessplit, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day of any Test Period being less net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than 5.0 to 1.0a public sale constituting an Excluded Contribution) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 6.0% of Market Capitalization;
(m) distributions or payments of Securitization Fees, sales, contributions, distributions and other transfers of Securitization Assets and purchases of Securitization Assets, in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized each case in connection with the Transactionsa Qualified Securitization Financing;
(jn) so long payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as no Default shall have occurred a result of, exercise of appraisal rights and be continuing the settlement of any claims or would result therefromaction (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02;
(o) the Borrower may make Restricted Payments with the proceeds distribution, by dividend or otherwise, of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the BorrowerCompany or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, Restricted Payments that the Borrower shall have elected to include such amounts are made (i) in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that amount of Excluded Contributions previously received since the Borrower will make such dividends and distributions Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business (including as event that a lender Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Company may, in its sole discretion, classify or financier under later divide, classify or reclassify all or a portion of such Restricted Payment or any financing provided portion thereof in a manner that complies with this Section 7.06 and will only be required to a Receivables Management Subsidiary)include the amount and type of such Restricted Payment in one or more of the above clauses.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrower or any Subsidiary; provided that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise and excise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gvi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay (A) withholding taxes imposed in connection with the Shareholder Loans or (B) Canadian tax liability attributable to net interest income earned on the Shareholder Loans net of interest expense on loans made pursuant to the Holdings Credit Agreement which is deductible pursuant to paragraph 20(1)(c) of the Canadian Income Tax Act.
(h) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the Borrower or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or other acquisition the common stock (or retirement for value equivalent thereof) of any direct or indirect holders of Equity Interests in the Borrower after the Closing Date, of up to 6.0% per annum of the Net Cash Proceeds received by or contributed to the Borrower in or from any such public offering to the extent such Net Cash Proceeds are Not Otherwise Applied;
(k) the Borrower or any Restricted Subsidiary may make Restricted Payments in an amount equal to withholding or similar Taxes payable or expected to be payable by any future, present or former employee employee, director, manager or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) so long as no Default shall have occurred and be continuing or would result therefrom, [Reserved];
(m) [Reserved];
(n) the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings the Second Lien Term Loans, Shareholder Loans and/or Holdings Loans made pursuant to Section 7.13(a)(iv) 7.09(a)(iii), and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hn), not to exceed the sum of (i) (A) $75,000,000 (such amount to be increased to $100,000,000 upon 15,000,000 at all times when the Total Senior Secured Leverage Ratio as of the last day of any Test Period being less is greater than 5.0 to 1.0) and 4.00:1.00, or (B) $25,000,000 when the Cumulative Growth Amount;Senior Secured Leverage Ratio is less than or equal to 4.00:1.00, in each case determined on a Pro Forma Basis for the Restricted Payment, (ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances that are Not Otherwise Applied and (iii) the Available Amount that is Not Otherwise Applied; and
(o) (i) so long as no Default shall have occurred and be continuing or would result therefromafter the fourth anniversary of the Closing Date, the Borrower may make additional Restricted Payments pay dividends to Holdings in an amount (together with equal to regularly scheduled interest on the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) Holdings Loans accruing after such fourth anniversary, so long as (x) Holdings uses the proceeds of such dividends to pay such interest and (y) no Event of Default shall have occurred and be continuing exists at the time of such dividends or would result therefrom(ii) at any time, the Borrower may make Restricted Payments with pay dividends to Holdings to finance interest payments on the proceeds of the issuance of Qualified Equity Interests of Shareholder Loans if such payments are funded from additional shareholder loans from Holdings to the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Samples: First Lien Credit Agreement (SMART Technologies Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $30,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of (i) $215,000,000 and Holdings (ii) 3.00% of Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, to the extent any such Restricted Payment is made by utilizing clause (b) of the definition of the Cumulative Credit, the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis shall not exceed 6.00 to 1.00;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year other direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth AmountRestricted Payments in an aggregate amount per annum not to exceed 7.00% of Market Capitalization;
(m) [reserved];
(i) so long as no Default shall have occurred the declaration and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount payment of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized cash dividends by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lii) the declaration and payment of dividends or distributions by the Borrower to, or the making of loans to, any direct or indirect parent company of the Borrower in amounts required for any direct or indirect parent company of the Borrower to declare and distributions on pay any cash dividends, in each case of subclauses (i) and (ii), pursuant to the terms of the applicable certificate of designations to holders of any class or series of preferred stock issued in exchange for Equity Interests of any Receivables Management Subsidiary to holders the Asian JV; provided, that the aggregate amount of minority interests substantially consistent with past practice Restricted Payments made under this clause, (A) shall be unlimited if, after giving pro forma effect to the extent payment of such holder Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal to 6.00 to 1.00 and (B) shall not exceed $50.0 million in any calendar year if, after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 6.00 to 1.00;
(o) the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or its affiliatesa Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary owns no assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents)); and
(p) participates Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06 and will only be required to include the amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations could be classified as incurred under a “ratio-based” basket (including giving pro forma effect to the making of such portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as a lender having been made pursuant to such “ratio-based” basket and thereafter the remainder of the Restricted Payment as having been made pursuant to one or financier under more of the other clauses of this Section 7.06 and if any financing provided such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to a Receivables Management Subsidiary)have automatically occurred at such time.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each non-and, in the case of a Restricted Payment by a non- wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) to consummate the Transactions, (ii) in connection with respect of working capital adjustments or purchase price adjustments pursuant to the Transaction Merger Agreement, (including any amounts iii) in order to be paid under, or contemplated by, satisfy indemnity and other similar obligations under the Transaction AgreementMerger Agreement and (iv) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, warrants or warrantsother equity-based awards;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings or any parent thereof made pursuant to clause (25) of the definition of “Permitted Investments” in lieu of Restricted Payments permitted by this clause (f) shall not exceed $10,000,000 in any calendar year (which shall increase to $15,000,000 subsequent to the consummation of a Qualified IPO) (with 100% of the unused amounts in any calendar year being carried over to succeeding calendar years); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”;
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $20,000,000 and 2.00% of Total Assets as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(iv)), plus (y) the Cumulative Credit at such time (provided, that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a)(ii) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrower, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise and similar taxes and other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period for which the Borrower is a disregarded entity or a partnership for U.S. federal income tax purposes or for which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent, in an amount equal to the product of (x) taxable income of the Borrower and, to the extent applicable, its Subsidiaries and (y) the highest combined marginal income tax rate applicable to an individual or corporate resident in New York City that holds equity in the Borrower (“Tax Distribution”).
(iv) if a Holdings Election Event shall occur, to finance any Investment Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 if made by the Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any direct or indirect parent thereof);
(gi) payments made or expected to be made by Holdings, the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the vesting or settlement of other equity-based awards;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amountamount per annum not to exceed an amount equal to 6% of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO;
(k) Holdings, together with the aggregate amount Borrower or any of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) the Restricted Subsidiaries may pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(l) Restricted Payments permitted by this clause (h), in an aggregate amount not to exceed the sum net cash proceeds received by the Borrower or any Restricted Subsidiary from a Person other than Holdings or a Subsidiary thereof from the sale of the Sale Leaseback Properties pursuant to a Sale Leaseback Transaction; provided, that immediately after giving effect to any such Restricted Payment (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as no Event of the last day of any Test Period being less than 5.0 to 1.0) Default has occurred and is continuing and (B) the Cumulative Growth Amount;Total Net Leverage Ratio on a Pro Forma Basis is not greater than 6.50:1.00; and
(im) additional Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) so long as no Default shall have occurred and be continuing or would result therefromimmediately after giving effect to such Restricted Payment, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.75 to 1.00, and satisfaction of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized such test shall be evidenced by a certificate from a Responsible Officer of the Borrower and the Restricted Subsidiaries demonstrating such satisfaction calculated in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries may declare and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments pay dividends and other distributions ratably with respect to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdingsin exchange for, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) out of the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidatedreceived from, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses concurrent issuance (other than to Affiliatesa Subsidiary) related of additional Equity Interests of the Borrower (other than Disqualified Stock);
(c) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Stock); 860627.02-LACSR02A - MSW
(d) the Borrower and each Restricted Subsidiary may consummate (i) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represents a portion of the exercise or exchange price thereof and (ii) any unsuccessful equity repurchases, redemptions or debt offering permitted by this Agreementother acquisitions or retirements for value of Equity Interests made or deemed to be made in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights;
(e) the Borrower and each Restricted Subsidiary may make payments of cash in lieu of issuing fractional Equity Interests;
(f) the Borrower and each Restricted Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable Requirements of Law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 6.01 or Section 6.08, as applicable;
(g) the Borrower and each Restricted Subsidiary may pay for the repurchasemake Restricted Payments with Net Cash Proceeds received from one or more Fayetteville Transactions, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement so long as (including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments Restricted Payments made pursuant to this clause (fg) does since the Effective Date shall not exceed in any fiscal year of the Borrower $15,000,000 750,000,000, (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without ii) no Loans are outstanding both immediately before and after giving effect to the following provisoany such Restricted Payment, (iii) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent after giving pro forma effect to the consummation making of a Qualifying IPOany such Restricted Payment and any contemporaneous Redemption of Existing Senior Notes pursuant to Section 6.10(c);
, the Total Leverage Ratio will not be greater than 3.50 to 1.00, (hiv) so long as such Restricted Payments are made no later than the Fayetteville Proceeds Deadline and (v) at the time of and immediately after giving pro forma effect to the making of any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromcontinuing; and
(lh) the declaration Borrower and payment of dividends and distributions on the Equity Interests of any Receivables Management each Restricted Subsidiary to holders of minority interests substantially consistent with past practice may make other Restricted Payments so long as, after giving pro forma effect to the extent making of such holder (or its affiliates) participates in Restricted Payments, the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Payment Conditions are satisfied.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower may (i) redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its or any Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
thereof (iincluding Holdings) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns pay) for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower or any such direct or indirect parent thereof (including Holdings) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $30,000,000 subsequent to the consummation of a Qualifying IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdingssucceeding calendar years subject to a maximum (without giving effect to the following proviso) of $20,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO of Holdings or any direct or indirect parent thereof, as the case may be)); provided, further that such amount in any calendar year may be increased by an amount not to exceed
(i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings (to the extent contributed to the Borrower), the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided further that cancellation of Indebtedness owing to Holdings or the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further, that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (f) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as if of the Closing Date.
(g) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) so long as the Borrower is treated as a pass-through entity of which such direct or indirect parent is an owner or a partner, or is a member of a consolidated or combined group that includes such direct or indirect parent, for U.S. federal, state or local income tax purposes, the Borrower may pay to such direct or indirect parent the amount of U.S. federal, state and local income taxes, as the case may be, incurred by such direct or indirect parent but only to the extent such income taxes are attributable to the income of the Borrower and its Subsidiaries filed separately;(excluding any Subsidiaries that are neither a pass-through entity nor a member of a consolidated or a combined group that includes a direct or indirect parent); provided that the amount of such payments in any fiscal year does not exceed the amount that the Borrower and such Subsidiaries would have been required to pay in respect of such federal, state and local taxes for such fiscal year if the Borrower and such Subsidiaries were members of a consolidated or combined group of which the Borrower was the common parent corporation.
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay the Borrower’s pro rata share of any franchise taxes and other fees, taxes and expenses required to maintain its (or so long as its direct or indirect parents directly or indirectly own no other assets than the Equity Interest in the Borrower any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) Restricted Payments so long as at the time of such Restricted Payments (after giving Pro Forma Effect to such additional Restricted Payments) the Total Leverage Ratio shall be no greater than 3.50 to 1.00;
(j) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(k) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to the greater of (i) 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S–4 or Form S–8 and (ii) the amount of the Available Amount that is Not Otherwise Applied;
(l) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hm) Restricted Payments in an amount equal to any reduction in taxes actually realized by the Borrower and the Restricted Subsidiaries in the form of refunds or credits or from deductions when applied to offset income or gain as a direct result of (i) Transaction Expenses, (ii) commitment and other financing fees or (iii) severance, change in control and other compensation expense incurred in connection with the exercise, repurchase, rollover or payout of stock options or bonuses, in each case in connection with the Transaction;
(n) the redemption in full of the Senior Subordinated Notes on the First Restatement Date; and
(o) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefromtherefrom and the Senior Secured Leverage Ratio (after giving Pro Forma Effect to such additional Restricted Payments) shall be no greater than 4.25 to 1.00, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(v) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (ho), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred greater of $50,000,000 and be continuing or would result therefromtwo percent (2%) of Total Assets, the Borrower may make additional Restricted Payments in an amount (together with ii) the aggregate amount of Investments made pursuant the Net Cash Proceeds of Permitted Equity Issuances contributed to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower that are Not Otherwise Applied and (iii) without duplication of clause (ii) above, the Restricted Subsidiaries in amount of the form of refunds or deductions realized in connection with Available Amount that is Not Otherwise Applied. Notwithstanding anything to the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromcontrary herein, the Borrower may will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Payment consisting of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as proceeds from a lender or financier under any financing provided to a Receivables Management Subsidiary)Qualified Securitization Transaction.
Appears in 1 contract
Restricted Payments. Declare No Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments that is not wholly-owned directly or indirectly by the U.S. Borrower, to the U.S. Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Borrowers and each the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) the Borrowers may make additional Restricted Payments so long as, on a pro forma basis after giving effect thereto, the Distribution Payment Conditions are satisfied at such time;
(e) to the extent constituting Restricted Payments, the Borrower Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower Borrowers (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrowers deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrowers and the Restricted Subsidiaries may pay (or make Restricted Payments to allow such Borrower and or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of a Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or such Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or such Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $30,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to a Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Specified Equity Contributions) of any of such Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, such Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrowers or their Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrowers may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (i) $215,000,000 and Holdings (ii) 3.00% of Total Assets;
(i) the Borrowers may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the U.S. Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the U.S. Borrower and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Borrowers and its their Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which a Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of a Borrower is the common parent or (B) in which a Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of such Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the such Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the such Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to such Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the U.S. Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the U.S. Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the U.S. Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the U.S. Borrower and its Restricted Subsidiaries;
(gj) the Borrower Borrowers or any Restricted Subsidiary may (i) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(k) after a Qualified IPO, (i) any Restricted Payment by the Borrowers or any other direct or indirect parent of any Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed up to the sum of (A) up to 6% per annum of the net proceeds received by (or contributed to) any Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the amount of Restricted Payments permitted by Section 7.06(l)(ii)(B) under the Cash Flow Credit Agreement (as in effect on the Second Restatement Effective Date); provided, that, immediately before and after giving pro forma effect to any such Restricted Payment pursuant to clause (B), the Non-Guarantor Payment Conditions are met;
(l) payments made or expected to be made by a Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement options;
(including any stock subscription or shareholder agreementm) with any employee or director of Restricted Payments permitted by Section 7.06(n) under the Borrower or any of its SubsidiariesCash Flow Credit Agreement (as in effect on the Second Restatement Effective Date); provided, howeverthat, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without immediately before and after giving pro forma effect to any such Restricted Payment, the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)Non-Guarantor Payment Conditions are met;
(hn) so long as the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrowers or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary owns no Default shall have occurred and be continuing or would result therefrom, assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the Borrower may make additional primary assets of which are cash and/or Cash Equivalents)); and
(o) Restricted Payments in an aggregate amount, together with the aggregate amount of that are made (i) prepayments, redemptions, purchases, defeasances in an amount equal to the amount of Excluded Contributions previously received and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) Not Otherwise Applied and (ii) loans without duplication with clause (i), in an amount equal to the net proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the U.S. Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06 and advances will only be required to include the amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations could be classified as incurred under a Payment Conditions basket (giving pro forma effect to the making of such portion of such Restricted Payment), the U.S. Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as having been made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed such Payment Conditions basket and thereafter the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as remainder of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long Restricted Payment as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments having been made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds one or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds more of the issuance other clauses of Qualified Equity Interests this Section 7.06 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of the Borrower;
(k) if the Borrower determination, then such reclassification shall become the Subsidiary of Holdings, so long as no Default shall be deemed to have automatically occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to any other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and or any such other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on ratably according to their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by to be incurred under Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(e)), 7.04 (other than a merger or consolidation involving the Borrower) or 7.08 (other than Section 7.08(a), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or similar rights;
(f) the Borrower may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any direct or indirect parent thereof) held by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries in an aggregate amount after the Closing Date together with the aggregate amount of loans and its advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) not to exceed $20,000,000 in any calendar year with unused amounts in any calendar year being carried over to the next two succeeding calendar years; provided that such amount in any calendar year may be increased by (A) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date, (B) to the extent contributed in cash to the common equity of the Borrower and not theretofore utilized to make a Restricted Payment under this clause (f), the proceeds from the sale of Equity Interests of Holdings or any direct or indirect parent thereof, in each case to employees, directors, consultants or distributor of the Borrower, a direct or indirect parent thereof, or its Subsidiaries that occurs after the Closing Date and (C) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former director, employee, consultant or distributor of the Borrower, a direct or indirect parent thereof, or its Subsidiaries that are foregone in return for the receipt of Equity Interests of Holdings or a direct or indirect equity holder thereof, Borrower or any Restricted Subsidiary;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect corporate parent (or entity treated as a corporation for tax purposes) thereof to pay) the tax liability (including estimated tax payments) to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect corporate parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes (including estimated tax payments) that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone, consolidated, combined, unitary or affiliated group and (B) the actual tax liability (including estimated tax payments) of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced in the case of clauses (A) and (B) by any such taxes paid or to be paid directly by the Borrower or its Subsidiaries determined as if Subsidiaries; provided that in the case of any such distributions attributable to tax liability in respect of income of an Unrestricted Subsidiary, the Borrower and shall use all commercially reasonable efforts to cause such Unrestricted Subsidiary (or another Unrestricted Subsidiary) to make cash distributions to the Borrower or its Restricted Subsidiaries filed separatelyin an aggregate amount that the Borrower determines in its reasonable discretion is necessary to pay such tax liability on behalf of such Unrestricted Subsidiary;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay operating costs and expenses (including, following the consummation of a Qualified IPO, Public Company Costs) of Holdings or its direct or indirect parents thereof which do not own other Subsidiaries besides Holdings, its Subsidiaries and any other direct or indirect parents of Holdings incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its such direct or indirect parents’parent’s) corporate or legal existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings and the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary (which shall be a Subsidiary Guarantor to the extent required by Section 7.02) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into by the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section Sections 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and7.02;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which (A) shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08(e), (h), (k) and (q) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);
(gh) the Borrower or any of the Restricted Subsidiaries may pay for cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(i) the repurchasedeclaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, retirement of up to 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other acquisition than public offerings with respect to the Borrower’s common stock registered on Form S-4 or retirement for value Form S-8 (it being understood that any dividends permitted to be declared pursuant to this clause (i) may be paid to the extent such payment is permitted under Section 7.08(r));
(j) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the Borrower exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)awards;
(hk) in addition to the foregoing Restricted Payments and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (i) the greater of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) an amount equal to the Cumulative Growth Amount;
Equivalent Percentage of the amount set forth in clause (iA) so long as no Default shall have occurred and be continuing or would result therefrom, multiplied by TTM Consolidated Adjusted EBITDA of the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance applicable date of Qualified Equity Interests of the Borrower;
determination and (kii) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice Total Net Leverage Ratio (after giving Pro Forma Effect to the Administrative Agent stating that making of such Restricted Payment and the Borrower will make use of proceeds thereof) would be no greater than 7.85:1.00, the Available Amount at such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromtime; and
(l) other Restricted Payments, so long as (x) no Default or Event of Default shall exist at such time or after giving effect to such Restricted Payment and (y) the declaration Senior Secured Net Leverage Ratio (after giving Pro Forma Effect to the incurrence of such Investment and payment the use of dividends and distributions on proceeds thereof) would be less than or equal 6.00:1:00. The amount set forth in clause (i) of Section 7.06 (without duplication) may, in lieu of Restricted Payments, be utilized by the Equity Interests of Borrower or any Receivables Management Restricted Subsidiary to holders of minority interests substantially consistent with past practice (i) make or hold any Investments without regards to Section 7.02 or (ii) prepay, repay redeem, purchase, defease or otherwise satisfy prior to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under scheduled maturity thereof any financing provided Junior Financing without regards to a Receivables Management Subsidiary)Section 7.12.
Appears in 1 contract
Samples: First Lien Credit Agreement (Advantage Solutions Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments Payment made pursuant to or in connection with the Transaction (including any amounts to be paid under, or contemplated byTransactions and/or in connection with the Tax Matters Agreement, the Transaction Transition Services Agreement) and , any employee matters agreement contemplated by the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of Bankruptcy Plan or other agreement contemplated by the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBankruptcy Plan;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings 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 or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $40,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i) the greater of $100,000,000 and 10.0% of Consolidated EBITDA for the Test Period then most recently ended on or prior to the date of such Restricted Payment, plus (ii) the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph; provided that, solely in the case of any Restricted Payments made in reliance on clause (b) of the definition of the “Cumulative Credit”, (A) the Consolidated First Lien Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.50 to 1.00 and (B) no Event of Default under Sections 8.01(a) or (f) has occurred or is continuing, in the case of any Restricted Payments made in reliance of clause (b) of the definition thereof) minus (iv) amounts applied to the prepayment of Junior Financing pursuant to Section 7.13(a)(iv)(1);
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) if the Borrower shall become the Holdings or any Restricted Subsidiary may (i) pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, so long as no Default shall have occurred split or combination thereof or any Permitted Acquisition and be continuing or would result therefrom, dividends (ii) honor any conversion request by a holder of convertible Indebtedness and distributions which will be used to fund the payment make cash payments in lieu of interest fractional shares in connection with any such conversion and fees may make payments on convertible Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in accordance with its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; andterms;
(l) any Restricted Payment by Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary;
(m) any Restricted Payment made in connection with paying dividends with respect to the declaration and payment by iHeart Operations of cash interest with respect to the iHeart Operations Preferred Stock in an amount up to $60,000,000 of liquidation preference and any accrued unpaid interest or premium thereon or any securities issued as a replacement therefor so long as the terms of such securities do not exceed $60,000,000 in liquidation preference, amount, stated value or principal amount and are not materially adverse to the Lenders, in their capacity as such, taken as whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower);
(n) any Restricted Payment made in connection with the declaration and payment of dividends or distributions to any holder of the iHeart Operations Preferred Stock paying for the repayment, repurchase, redemption, defeasance, or otherwise acquire or retire for value of all or any portion of the iHeart Operations Preferred Stock in an amount up to $60,000,000 of liquidation preference or any securities issued as a replacement therefor so long as the terms of such securities do not exceed $60,000,000 in liquidation preference, amount, stated value or principal amount and are not materially adverse to the Lenders, in their capacity as such, taken as a whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower), together with accrued and unpaid interest or premium thereon to the redemption date thereof, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) related thereto;
(o) distributions in connection with the making of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(p) the distribution, by dividend or otherwise, of Equity Interests of any Receivables Management an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to holders Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of minority interests substantially consistent one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents); and
(q) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and that Holdings elects to apply under this clause (q) or (ii) without duplication with past practice clause (i), in an amount equal to the Net Proceeds not required to be applied in accordance with Section 2.05 or the first proviso to the definition of Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 1 contract
Samples: Credit Agreement (iHeartMedia, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(a) in the case of any Loan Party (iother than the Parent) each Restricted or any Significant Subsidiary, such Loan Party or Significant Subsidiary may make declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, in respect of Restricted Payments to the Borrower any Loan Party and to other wholly-owned Subsidiaries of any Loan Party (and, in the case of a Restricted Subsidiaries and (ii) each Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Significant Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner owners of Equity Interests of such Significant Subsidiary, in respect of which such Restricted Subsidiary Payment is declared, made and/or incurred, on a pro rata basis based on their relative ownership interests interests); in the case of the relevant class Parent, Parent may declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, in respect of: repurchases of Equity Interests;
its common stock offered for sale on the limited market (balso known as the internal market) referred to in the “special provisions relative to stock” set forth in the Parent’s bylaws, as those bylaws are in effect as of the Closing Date; provided, that, before the Additional Transaction Condition is satisfied, (A) the Borrower amount of any Restricted Payment made pursuant to this Section 7.06(b)(i) shall not exceed the Available Restricted Payment Amount determined at the time of making each such Restricted Payment, (B) both before and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shallPayment, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments repurchases made in cash pursuant to this clause (fb)(i) shall not exceed (A) during the period from July 1, 2014 through December 31, 2014 (the “2014 Payment Period”), an amount equal to (1) $45,000,000 minus (2) the aggregate amount of Legally Required Restricted Payments made in cash during the 2014 Payment Period through such time, and (B) during FY2015, an amount equal to (1) $45,000,000 minus (2) the lesser of (A) the aggregate amount of Legally Required Restricted Payments made in cash during FY2015 through such time, or (B) $45,000,000;no Default or Event of Default has occurred and be continuing and (C) the Borrowers are, both before and after giving effect to such Restricted Payment, in compliance Legally Required Restricted Payments; Restricted Payments made in connection with and strictly for (A) :
(A) payments on or repurchases of common stock issued by the Parent (including dividends on the Parent’s common stock but excluding Restricted Payments made pursuant to clauses (i) or (ii) above) or (B) redemptions of preferred stock issued by the Parent (excluding any dividends on such preferred stock), in each case so long as, at the time of making each such Restricted Paymentand (ii) above); provided that, at the time of making, and after giving effect to, each such Restricted Payment, (1) at any time during which the Additional Transaction Condition is not met, the amount of any Restricted Payment pursuant to this Section 7.06(b)(iii) shall not exceed the Available Restricted Payment Amount determined at the time of such Restricted Payment, (2) at any time during which the Additional Transaction Condition is met, the aggregate amount of all such Restricted Payments in any Fiscal Year pursuant to this clause (iii) does not exceed in any fiscal year of (a) during FY2015, $15,000,000, minus the Borrower first $15,000,000 of Legally Required Restricted Payments made in cash in excess of $45,000,000 during FY2015 through such time, or (b) during any other Fiscal Year, $100,000,000, (2)Restricted Payments pursuant to this Section 7.06(b)(iii) (including all Restricted Payments pursuant to this clause (A) and clause (B) below) does not exceed $100,000,000 during any Fiscal Year, (3) at any time during which the Additional Transaction Condition is not met, the Borrowers shall increase to $20,000,000 subsequent to be in pro forma compliance with the consummation financial covenants set forth in Section 7.14, and (4) in each case the additional conditions set forth below are satisfied; and
(B) redemptions of a Qualifying IPOpreferred stock issued by the Parent (excluding any dividends on such preferred stock) ; provided any such redemption of preferred stock may be made only if, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without at the time of making, and after giving effect to to, each such Restricted Payment, (1) the following provisoAdditional Transaction Condition is met, (2) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made all Restricted Payments pursuant to this Section 7.13(a)(iv7.06(b)(iii) and (ii) loans and advances made including all Restricted Payments pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of B) and clause (A) $75,000,000 (such amount to be increased to above) does not exceed $100,000,000 upon the Total Leverage Ratio as of the last day of during any Test Period being less than 5.0 to 1.0) Fiscal Year, and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”3) in respect of each case the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).additional conditions set forth below are satisfied;
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Restricted Payments. Declare The Obligors will not, and will not permit any Subsidiary (other than Unrestricted Entities) to, make or makepermit any withdrawals or any other payments of money or equivalents thereof whatsoever (including, directly without limitation, royalties, management fees, etc.) by or indirectlyto the shareholders of the Parent Guarantor or in respect of any Convertible Debentures , except for the following, in each case provided no Event of Default has occurred and is continuing and no Event of Default will occur as a consequence thereof (including after giving pro forma effect thereto and any Restricted Payment, except:related transaction in the calculation of the financial covenants under Section 10.6):
(a1) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries payment of dividends, whether in cash or in specie; and (ii2) each non-wholly owned Restricted Subsidiary may make Restricted Payments normal course distributions to the Borrower and any other Restricted Subsidiary and to each other owner minority shareholders of Equity Interests of such Restricted Subsidiary based on their relative ownership interests Subsidiaries of the relevant class of Equity InterestsObligors as contemplated in the Parent Guarantor’s annual business plan;
(bB) distributions and returns of capital (whether by retirement, redemption, repurchase, cancellation or otherwise) and normal course issuer bids of the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonParent Guarantor;
(cC) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests payments upon exercise of the Borrower (immediately prior to giving effect to put options under the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoShareholders’ Agreements;
(dD) to payments upon exercise of the extent constituting Restricted Payments, call options under the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f)Shareholders’ Agreements;
(eE) repurchases payments on account of Equity Interests in the Borrower retirement, termination, death or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)disability redemptions; and
(vF) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed Convertible Debentures on the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromscheduled maturity date thereof; and
(lG) dividends or other distributions by the declaration and payment of dividends and distributions on Receivables Entity to the Equity Interests of any Receivables Management Subsidiary to holders of minority equity interests substantially consistent with past practice to the extent therein (so long as such holder (holders are either an Obligor or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiarywholly owned Subsidiary of an Obligor).
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Samples: Note Purchase Agreement (Colliers International Group Inc.)
