Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 4 contracts

Sources: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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~~ its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the form of Equity Interests (other than Disqualified Equity Interests) of the ~~Borrower~~Borrower or, if to the Borrower or a Restricted Subsidiary, of any Restricted Subsidiary; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of ~~C$55,000,000 which are attributable to clause~~ the greater of (bx) $75,000,000 and (y) 3.75% of ~~the Available Amount~~Consolidated Tangible Assets (calculated on a Pro Forma Basis), the ~~Fixed Charge Coverage~~ Secured Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is ~~greater~~ less than or equal to ~~2.00:1.00~~ 3.50:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (d) to the extent constituting Restricted Payments, the Borrower and ~~the~~ its Restricted Subsidiaries may enter into and consummate transactions (and the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings to permit it to consummate transactions of the type) expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in Holdings, the Borrower or any of ~~the~~ its Restricted 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 warrants or similar rights; (f) the Borrower and ~~the~~ its Restricted Subsidiaries may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of ~~the Borrower~~Holdings, the amount of such Restricted Payment is directly attributable to the Equity Interests of ~~the Borrower~~ Holdings owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ Holdings (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of ~~management~~ management, independent contractors and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of ~~the Borrower~~ Holdings (or any direct or indirect parent of thereof), the ~~Borrower)~~ Borrower or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) or otherwise pursuant to any employee or director equity plan, employee or director stock option or profit interest plan in an aggregate amount after the ~~First Amendment Effective~~ Closing Date, together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$$35,000,000 and (x) ~~1.1~~2.0% of Consolidated ~~Total~~ Tangible Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (which shall be increased to the greater of (A) $50,000,000 and (B) 2.5% of Consolidated Tangible Assets after the consummation of a Qualifying IPO) (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding ~~three~~ calendar ~~years~~year); provided that such amount in any calendar year may be increased by an amount not to exceed (x) the amount of any cash bonuses or other compensation otherwise payable to such Person in return for the receipt of Equity Interests of Holdings or a direct or indirect parent thereof, the Borrower or any of its Restricted Subsidiaries, plus (y) the cash proceeds received by Holdings, the Borrower or any of ~~the~~ its Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or Specified Equity Contributions or amounts that increased the Available Amount) of ~~the Borrower~~ Holdings or any direct or indirect parent ~~of the Borrower~~ thereof (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of ~~the Borrower~~ Holdings or any of its Subsidiaries or any direct or indirect parent ~~of the Borrower~~ thereof that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of ~~the Borrower~~ Holdings or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of ~~the Borrower~~ Holdings or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments to Holdings or to any direct or indirect parent ~~of the Borrower~~thereof: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred in the ordinary course of business (including, following the consummation of a Qualifying IPO, Public Company Costs) 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay ~~customary~~ salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 ~~Section~~ Sections 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, ~~employment insurance, statutory pension plan,~~ withholding and other taxes payable ~~and other remittances to Governmental Authorities~~ in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for U.S. federal and/or applicable state or local income Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit ~~the common parent of~~ such ~~Tax Group~~ Persons to pay the portion of any U.S. federal, state or local income Tax (as applicable) of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of ~~the~~ its Restricted Subsidiaries may pay cash (or make Restricted Payments to ~~any direct or indirect parent~~ Holdings the proceeds of which shall be used to enable it or any direct or indirect parent thereof to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii)~~options; (j) in addition to the foregoing Restricted ~~Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom~~Payments, the Borrower and ~~the~~ its Restricted Subsidiaries may make additional Restricted Payments (i) in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed the greater of (ix) ~~C$50,000,000~~ $125,000,000 and (iiy) ~~1.5~~6.5% of Consolidated ~~Total~~ Tangible Assets ~~determined at the time of incurrence of such Indebtedness~~ (calculated on a Pro Forma Basis) at any time outstanding plus (ii) additional unlimited amounts so long as no Event of Default would result therefrom and immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the ~~Total~~ Secured Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to ~~5.00:1.00~~3.25:1.00; (k) after a Qualifying IPO, the declaration and payment of regular dividends on the Borrower’s common ~~stock~~ Equity Interests (and the Borrower and its restricted Subsidiaries may pay regular dividends to Holdings or any of its parents to permit Holdings or such parent to pay such dividends), ~~in the aggregate in any calendar year~~ of up to the sum of (ix) 6.00% per annum of the Net Cash Proceeds received by by, or contributed to to, the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO ~~and~~ plus (iiy) 6.00% per annum of the ~~market capitalization~~ Market Capitalization of Holdings (or the ~~Borrower at the time of such Qualifying IPO~~applicable public filing entity); (l) Restricted Payments that are made with the Available Excluded ~~Contributions~~ Contribution Amount to the extent Not Otherwise Applied; (m) the ~~distribution, by dividend or otherwise,~~ Borrower and its Restricted Subsidiaries may make cashless exchanges of ~~shares~~ unsecured and/or subordinated debt for Indebtedness meeting the conditions of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents)Permitted Refinancing; (n) the Borrower and its Restricted Subsidiaries may make Restricted Payments to ~~satisfy appraisal~~ Holdings to pay (or to make Restricted Payments to any direct or indirect parent of Holdings to pay) management fees and transaction fees in accordance with the management agreement among the Equity Sponsor and the other ~~dissenters’ rights~~parties thereto, ~~pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04~~so long as no Specified Default shall have occurred and be continuing; (o) ~~redemptions~~ the Borrower and its Restricted Subsidiaries may make Restricted Payments in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous an amount equal to the ~~Lenders in all respects material~~ Net Cash Proceeds from the IT Services Business Disposition not applied (or required to ~~their interests~~ be applied) to prepay the Term Loans pursuant to Section 2.05(b)(iii), so long as ~~those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.~~no Specified Default would result therefrom; (p~~) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q~~) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce the capacity for Restricted Payments pursuant to such other provision when so made~~; and~~; (rq) the ~~First Amendment Transactions~~ Transaction and Restricted Payments made to effect the ~~First Amendment Transactions~~ Transaction; (r) the Borrower and ~~pay fees and expenses related thereto (including~~ its Restricted Subsidiaries may make Restricted Payments to pay any scheduled and/or mandatory dividend in respect of any series of Closing Date Borrower Preferred Equity or Qualified Equity Interests, so long as no Specified Default would result therefrom; (s) the Borrower and its Restricted Subsidiaries may (i) make Restricted Payments to pay any settlement, redemption or exchange in respect of the Closing Date Borrower Preferred Equity required to be made ~~(A)~~ on or prior to ~~holders~~ the first anniversary of ~~restricted stock or performance stock units~~ the Closing Date, so long as ~~provided by the First Amendment Transaction Agreement~~ no Specified Default would result therefrom and (Bii) at any time, refinance the Closing Date Borrower Preferred Equity and/or any Qualified Equity Interests, in ~~order~~ each case, with proceeds of Qualified Equity Interests; (t) the making of any Restricted Payments for purposes of making AHYDO Catch-Up Payments relating to ~~satisfy indemnity~~ Indebtedness of any of Holdings or an of its direct or indirect parent companies, the Borrower and ~~other similar obligations under~~ its Restricted Subsidiaries; (u) the ~~First Amendment Transaction Agreement).~~Borrower may make Restricted Payments in the amount of the Available RDP Reclassification Amount; (v) the Borrower may pay dividends or make distributions to permit Holdings or any direct or indirect parent of Holdings

Appears in 4 contracts

Sources: Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc)

Restricted Payments. ~~Declare~~ Neither the Parent Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Parent Borrower, and ~~to the~~ other Restricted Subsidiaries of the Parent Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Parent Borrower and any other Restricted ~~Subsidiaries~~ 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 Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) Restricted Payments made in connection with the Transactions (including (x) payment of the Echo Purchase Price (as defined in the Contribution Agreement) and (y) repayment of the MCK Promissory Note (as defined in the Contribution Agreement) and the fees and expenses related thereto or used to fund amounts owed to Affiliates (including dividends to any Parent Company to permit payment by such Parent Company of such amounts)); (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Parent Borrower and the Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not to exceed~~ so long as the ~~Available Amount immediately prior to the time~~ Consolidated Total Net Leverage Ratio as of the ~~making~~ last day of ~~such Restricted Payment~~the Test Period most recently ended (calculated on a Pro Forma Basis) is less than or equal to 5.00 to 1.00; (de) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions constituting Permitted Investments (other than clauses (e), (n) or (z) of the definition thereof) or transactions expressly permitted by any provision of ~~Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ Sections 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e), (n), (s) and ~~7.08(m)(ii~~(u)); (ef) ~~redemptions, repurchases, retirements~~ repurchases or ~~other acquisitions~~ withholdings of Equity Interests in the Parent Borrower (or any ~~of the~~ Parent Company) or any Restricted ~~Subsidiaries~~ Subsidiary deemed to occur upon exercise of stock ~~options or~~ options, warrants or ~~similar rights~~ other equity-based awards if such Equity Interests represent a portion of the exercise ~~price~~ price, or payments in respect of ~~such options~~ withholding or similar taxes payable upon exercise of stock options, warrants or ~~similar rights~~other equity-based awards; (fg) the Parent Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Parent Borrower or any ~~direct or indirect parent thereof~~ Parent Company to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ such Restricted Subsidiary (or ~~such direct~~ of the Parent Borrower or ~~indirect parent thereof~~any Parent Company) ~~held by~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, manager, members of ~~management and consultants~~ management, independent contractor or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or Immediate Family members or permitted transferees) of ~~the Borrower~~ such Restricted Subsidiary (or the Parent Borrower or any ~~direct or indirect parent of the Borrower~~Parent Company) or any of its Subsidiaries 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 and including, for the avoidance of doubt, the payment of any principal and interest payable on any Indebtedness issued by such Restricted Subsidiary, the Parent Borrower or any Parent Company in connection with such repurchase, retirement or other acquisition) with any employee, manager, director, officer, member of management, independent contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family members or permitted transferees) of such Restricted Subsidiary (or the Parent Borrower or any Parent Company) or any of its Subsidiaries, including any Equity Interest rolled over by management, directors or employees of the Parent Borrower, any of its Subsidiaries or any Parent Company in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with Transactions; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $50,000,000 in any calendar year (~~it being understood that any~~ which shall increase to $100,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $80,000,000 in any calendar ~~years~~year or $160,000,000 subsequent to the consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the extent contributed to the Parent Borrower, the net cash proceeds received ~~by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity ~~Interests, Excluded Contributions~~ Interests or ~~amounts that increased the Available Amount~~Designated Equity Contributions) of the Parent Borrower or any ~~direct or indirect parent of the Borrower (to the extent contributed to the Borrower)~~ Parent Company, in each case to any future, present or former ~~employee~~members of management, ~~officer~~managers, ~~director~~directors, ~~member of management~~ employees, officers, independent contractors or ~~consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ their respective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family members or permitted transferees) of the ~~Borrower or~~ Parent Borrower, any of its Subsidiaries or any ~~direct or indirect parent of the Borrower~~ Parent Company that occurs after the Closing Date, ~~plus~~ to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the amount of any cash bonuses otherwise payable to members of management, employees, directors, officers, managers, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members or permitted transferees) of the Parent Borrower, any of its Subsidiaries or any Parent Company that are foregone in exchange for the receipt of Equity Interests of the Parent Borrower or any Parent Company pursuant to any deferred compensation plan of such company; plus (iii) the net cash proceeds of key man life insurance policies received by the Parent Borrower or any of the Restricted ~~Subsidiaries after the Closing Date~~Subsidiaries; ~~provided, further, that~~ less (1iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i), (ii) and (iii) of this Section 7.06(g); and provided that the Parent Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (yi), (ii) and (ziii) above in any calendar year and provided, further, that (2x) cancellation of Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from any future, present or former ~~employee~~employees, ~~officer~~directors, ~~director~~officers, ~~member~~ managers, members of ~~management~~ management, independent contractors or ~~consultant~~ consultants (or their respective Controlled Investment Affiliates or Immediate Family Members or permitted transferees) of the ~~estates~~Parent Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ any Parent Company or ~~former domestic partner of~~ any of the ~~foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof~~ Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Parent Borrower or any ~~direct~~ Parent Company and (y) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or ~~indirect parent thereof~~ similar instruments if such Equity Interests represents all or a portion of the exercise price thereof, payments in lieu of the issuance of fractional Equity Interests, or withholding of withholding or similar taxes payable in connection therewith, in the case of each of clauses (x) and (y), will not be deemed to constitute a Restricted Payment for purposes of ~~this~~ Section 7.06 or any other provision of this Agreement; (gh) the Parent Borrower may make Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (h) (in the case of Restricted Investments, at the time outstanding (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been converted to, cash or Cash Equivalents)) not to exceed (x) the greater of (i) $375,000,000 and (ii) 35% of Consolidated EBITDA of the Parent Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Restricted Payments, plus (y) the portion, if any, of the Cumulative Credit on such date that the Parent Borrower elects to apply to this paragraph so long as, in the case of this clause (y) and in the case of a Restricted Payment (other than a Restricted Investment), no Event of Default has occurred and is continuing or would result therefrom; provided that the amount available under this Section 7.06(h) shall be reduced, without duplication, on a dollar-for-dollar basis by the Available RP Capacity Amount utilized to incur Liens and Indebtedness under Section 7.01(nn) or Section 7.03(ee) (in each case, as provided in the definition of the Available RP Capacity Amount and whether or not still outstanding) to the extent such Liens or Indebtedness, as applicable, were incurred in reliance on any Available RP Capacity Amount based solely on the availability under this Section 7.06(h); (i) the Parent Borrower may make Restricted Payments to any ~~direct or indirect parent of the Borrower~~Parent Company: (i) ~~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 ~~of such Persons~~ 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,~~ business and attributable to the ownership or operations of the Parent Borrower and ~~its~~ the 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 Parent Borrower and the Restricted Subsidiaries; (ii) the proceeds of which shall be used ~~to pay (or make Restricted Payments to allow any direct or indirect parent thereof~~ by such Parent Company to pay, in each case without duplication: (A) ~~franchise~~ franchise, excise and similar ~~Taxes~~taxes, and other fees and expenses, required to maintain its ~~(or any of such direct or indirect parent’s)~~ corporate or legal existence; and (B) (1) for any taxable period (including, for the avoidance of doubt, any “reviewed year” as defined in Section 6225(d)(1) of the Code as in effect for tax years beginning after December 31, 2017) for which the Parent Borrower is treated as, or is disregarded as an entity separate from, a partnership (solely for purposes of clause (x), other than a partnership that is wholly owned, directly and/or indirectly, by a Parent Company that is a corporation) for U.S. federal income tax purposes, (x) distributions to the equity holders of the Parent Borrower or any Parent Company pursuant to Section 8.02(a) of the LLC Agreement; and (y) without duplication of any amounts distributable under clause (B)(1)(x) above or clause (B)(2) below, any liability of a Parent Company for (a) any “imputed underpayment” under Section 6225 of the Code as in effect for tax years beginning after December 31, 2017, or (ii) interest and penalties payable by such Parent Company pursuant to Section 6233 of the Code as in effect for tax years beginning after December 31, 2017; and (2) for any taxable period (x) for which the Parent Borrower is treated as, or is disregarded as an entity separate from a corporation for U.S. federal income tax purposes and the Parent Borrower and/or its Subsidiaries are, for U.S. federal, state, local and/or non-U.S. income or similar tax purposes, members of a consolidated, combined, unitary or similar tax group (a “Tax Group”) of which a Parent Company is the common parent, (y) for which the Parent Borrower is disregarded as an entity separate from a Parent Company that is a corporation for U.S. federal income tax purposes, or (z) for which the Parent Borrower is treated as, or is disregarded as an entity separate from, a partnership that is wholly owned, directly or indirectly, by a Parent Company that is a corporation for U.S. federal income tax purposes, the portion of any income or similar taxes of such Tax Group (or, in the case of clause (y) or clause (z), of any U.S. federal and applicable state and/or local income or similar taxes of such Parent Company) for such taxable period attributable to the taxable income of the Parent Borrower and/or its applicable Subsidiaries; provided that, with respect to this clause (2), for each taxable period, (i) the amount of such payments in the aggregate does not exceed the amount that the Parent Borrower and its applicable Restricted Subsidiaries (and, to the extent permitted below, its applicable Unrestricted Subsidiaries) would have been required to pay if they were a stand-alone corporate Tax Group with the Parent Borrower as the common parent of such stand-alone Tax Group, and (ii) the amount of such payments in respect of any Unrestricted Subsidiary will be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Parent Borrower or any Restricted Subsidiary for the purpose of paying such taxes; (iii) [reserved]; (iv) to finance any Investment or acquisition that constitutes a Permitted Investment or is otherwise permitted under this Section 7.06 if such Parent Company were subject to ~~be made pursuant to~~ this Section ~~7.02~~7.06; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment or acquisition and (B) such ~~Persons~~ Parent Company shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or a any Restricted Subsidiary or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Parent Borrower or any Restricted Subsidiary in order to consummate such Investment or ~~acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~acquisition, in each case, ~~in accordance with the~~ subject to any applicable requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)6.11; (v) the proceeds of which ~~(A)~~ shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors, ~~officers, employees, members~~ managers and employees of ~~management and consultants of such Persons~~ any Parent Company and any payroll, social security or similar taxes ~~in connection therewith~~ thereof, to the extent such salaries, ~~bonuses~~ bonuses, severance, indemnities and other benefits are attributable to the ownership or operation of the Parent Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vi) the proceeds of which ~~will~~ shall be used by Holdings to pay (or to make ~~payments due~~ Restricted Payments to allow any other Parent Company to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan debt offering by Holdings (or any other ~~management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement~~Parent Company); (vii) to the ~~proceeds~~ extent constituting Restricted Payments, to permit payment by such Parent Company of ~~which shall~~ amounts that would be ~~used~~ permitted to ~~pay cash~~be paid by the Parent Borrower under Section 7.08 (other than Section 7.08(e) or (n)); (viii) to permit payment by such Parent Company of fees and expenses related to any unsuccessful equity or debt offering of any Parent Company; (ix) to permit payment by such Parent Company of amounts payable pursuant to the Investor Management Agreement, solely to the extent such amounts are not paid directly by the Parent Borrower or its Subsidiaries; (x) to permit payment by such Parent Company of cash payments in lieu of issuing fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Parent Borrower or any Parent Company; (xi) [reserved]; (xii) to permit payment by such ~~Persons~~Parent Company of Excluded Contract Amounts (other than Specified TMA Payments); and (~~viii~~xiii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit ~~the common parent~~ payment by such Parent Company of ~~such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable~~ amounts payable pursuant to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeTransaction Documents; (hj) (i) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries ~~may pay cash~~ (~~or make Restricted Payments~~ including dividends to any ~~direct or indirect parent the proceeds~~ Parent Company to permit payment by such Parent Company of ~~which shall be used to enable it to pay cash~~such amounts) in ~~lieu~~ respect of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of required withholding or similar ~~taxes payable by~~ non-US Taxes with respect to any future, present or former ~~officer,~~ employee, director, officer, member of ~~management~~ management, manager, independent contractor or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners~~ Controlled Investment Affiliates or Immediate Family Members or permitted transferees) and ~~former domestic partners),~~ any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect loans or advances to ~~any such additional unlimited amounts of Restricted Payment~~officers, ~~the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as~~ directors, employees, managers, consultants and independent contractors of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Parent Borrower or ~~a Restricted Subsidiary in~~ any Parent Company or ~~from~~ any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).Restricted

Appears in 4 contracts

Sources: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each ~~Restricted~~ Subsidiary may make Restricted Payments to the Borrower and to ~~the other Restricted~~ wholly owned Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned Restricted~~ wholly owned Subsidiary, to the Borrower and any ~~other Restricted Subsidiaries~~ Subsidiary and to each other owner of capital stock or other Equity Interests of such ~~Restricted~~ Subsidiary on a pro rata basis based on their relative ownership ~~interests of the relevant class of Equity Interests~~interests); (b) each Subsidiary of the Borrower ~~and each of the Restricted Subsidiaries~~ 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)~~ of ~~the Borrower~~such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; (d) the Borrower may make Restricted Payments so long as ~~immediately~~ (i) the Material Debt Documents then outstanding, if any, would permit such Restricted Payment, (ii) after giving effect to such Restricted ~~Payment~~Payments (and any other transaction (including any incurrence, assumption or repayment of any Indebtedness) in connection therewith), the Borrower and its Subsidiaries shall have at least $50,000,000 of available Liquidity and (iiii) if, after giving effect thereto, either (A) the Consolidated Senior Secured Leverage Ratio calculated on a Pro Forma Basis for ~~all~~ the applicable Reference Period would be less than 2.25:1.00 or (B) the aggregate amount of such Restricted Payments made pursuant to this ~~Section 7.06(c~~subclause (iii)(B) would be less than the sum of (1) $100,000,000 in ~~excess of C$55,000,000 which are attributable~~ the aggregate since the Closing Date plus (2) up to ~~clause (b)~~ 100% of the ~~Available Amount,~~ Net Cash Proceeds from the ~~Fixed Charge Coverage Ratio~~ sale or issuance by the Borrower of any of its Equity Interests since the Closing Date plus (~~calculated on a Pro Forma Basis~~3) as 50% of the ~~last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and~~ Consolidated Net Income since September 30, 2016; (iie) ~~for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case~~ the Borrower and ~~the Restricted~~ its Subsidiaries may make Restricted Payments on or promptly after the Closing Date in ~~an amount not to exceed~~ connection with the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rightsTransactions; (f) the Borrower and ~~the Restricted~~ its Subsidiaries may ~~pay~~ incur Indebtedness pursuant to Section 7.02(c) (including refinancings thereof); and (g) dividends on the common stock or ~~make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of~~ common Equity Interests ~~of any direct or indirect parent~~ of the Borrower, ~~the amount of such Restricted Payment is directly attributable to the Equity Interests~~ or any share repurchases of the ~~Borrower owned directly~~ common stock or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent common equity interests of the Borrower~~) or any of its Restricted Subsidiaries in connection with the death~~, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $20,000,000 in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsfiscal year. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: Credit Agreement (AdvanSix Inc.), Credit Agreement (AdvanSix Inc.), Credit Agreement (AdvanSix 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) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) the Spin-Off Transaction and the payment of all fees and expenses related thereto; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 4.00 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) ~~and 7.08(m)(ii~~or 7.08(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members~~ manager or consultant of ~~management and consultants~~ such Restricted Subsidiary (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of~~ the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $150,000,000 in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to ~~the immediately~~ succeeding ~~three~~ calendar ~~years~~years subject to a maximum of $400,000,000 in any calendar year); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the ~~cash proceeds received by~~ extent contributed to the ~~Borrower or any of~~ Borrower, the ~~Restricted Subsidiaries~~ Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent companies, in each case to members of ~~the Borrower (to the extent contributed to~~ management, managers, directors or consultants of Holdings, the Borrower~~) to any future~~, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less (iii) the amount of any Restricted ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date; provided, further, that~~ cash proceeds described in clause (1i) and (ii) of this Section 7.06(g); (h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, when combined with prepayment of ~~the aggregate increase contemplated by clauses~~ Indebtedness pursuant to Section 7.13(a)(iv), (x) 3.00% of Total Assets, plus (y) so long as no Default has occurred and ~~(z) above in any calendar year~~ is continuing or would result therefrom and ~~(2) cancellation of Indebtedness owing to~~ the Fixed Charge Coverage Ratio on a consolidated basis for the Borrower ~~or any~~ and its Restricted ~~Subsidiary from any future~~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, ~~present or former employee~~determined on a pro forma basis, ~~officer~~the portion, ~~director~~if any, ~~member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ of the ~~foregoing) of~~ Cumulative Credit on such date that the Borrower ~~or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed~~ elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ 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) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds~~ company of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used by Holdings to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or ~~a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only~~ to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to allow any direct or indirect parent ~~the proceeds of which shall be used~~ thereof to ~~enable it~~ pay) fees and expenses (other than to ~~pay cash~~Affiliates) ~~in lieu of fractional Equity Interests in connection with~~ related to any ~~dividend, split~~ unsuccessful equity or ~~combination thereof, any Permitted Acquisition~~ debt offering by Holdings (or any ~~exercise of warrants, options~~ direct or ~~other securities convertible into or exchangeable for Equity Interests; (i~~indirect parent thereof) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition that is directly attributable to the ~~foregoing Restricted Payments and so long as no Event~~ operations of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its ~~restricted Subsidiaries may pay dividends~~ Restricted Subsidiaries; and (vii) amounts payable pursuant to (x) the Investor Management Agreement or (y) any of ~~its parents to permit such parent to pay such dividends)~~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 ~~aggregate in any calendar year of up to the sum of (i) 6.00%~~ good faith judgment of the ~~Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00%~~ board of ~~the market capitalization~~ directors of the Borrower at to the ~~time of~~ Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such ~~Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions~~ amendment or replacement), solely to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not ~~included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction~~paid directly by Borrower or its Subsidiaries; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)

Restricted Payments. ~~Declare or make~~Make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made~~ in respect of earn-outs, working capital adjustments or purchase price adjustments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on any Permitted Acquisition or ~~prior to the date of determination is greater than or equal to 2.00:1.00~~ other permitted Investments and (ii) ~~for all Restricted Payments made pursuant~~ in order to ~~this Section 7.06(c) no Specified Default shall have occurred~~ satisfy indemnity and ~~be continuing or would result therefrom,~~ other similar obligations in ~~each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time~~ respect of ~~the making of such Restricted Payment~~any Permitted 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 7.02 (other than ~~Section~~ 7.02(e) and 7.02(m)), ~~Section 7.03, Section 7.04, Section~~ 7.04 (other than 7.04(f)) or 7.05 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~7.05(e)(iv) and ~~7.08(m)(ii~~7.05(g)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower, any direct or indirect parent of the Borrower or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (f) ~~the~~ Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow the Borrower or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 or (ii) make Restricted Payments in the form of distributions to allow the Borrower or any direct or indirect parent of ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of the Borrower or such Restricted ~~Subsidiaries~~ Subsidiary (or Holdings or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 the Borrower or such Restricted Subsidiary (or ~~a breach~~ Holdings or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this ~~clause (f),~~ Section 7.06(f) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $50,000,000 in any calendar year (~~it being understood that~~ which shall increase to $100,000,000 in any calendar year following a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to ~~the immediately~~ one or more succeeding ~~three~~ calendar years up to a maximum of $100,000,000 in any calendar year (which shall increase to $200,000,000 in any calendar year following a Qualified IPO) carried forward to any fiscal year from preceding fiscal years); ~~provided~~ provided, further, that such amount in any calendar year may further be increased by an amount not to exceed ~~(y)~~ the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~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 ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant~~ of (or i) the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ (ii) any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or (iii) any ~~Subsidiary thereof~~ of Holdings’ Restricted Subsidiaries, in each case in connection with a the repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this ~~Agreement~~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 $150,000,000 and 15.0% of Consolidated EBITDA for the ~~Restricted Subsidiaries~~ most recently completed Test Period for which financial statements have been delivered (determined on a Pro Forma Basis in accordance with Section 1.09); provided that no 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 ~~the Borrower~~Holdings: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and expenses, in each case, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate or ~~legal~~ limited liability company existence; (iii) 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; provided, further, that such payments in respect of any Taxes attributable to the income of an Unrestricted Subsidiary shall be permitted only to the extent that such Unrestricted Subsidiary has made cash payments to the Borrower or any of its Restricted Subsidiaries for such purpose; (iv) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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 (B) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries that are Loan Parties or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of ~~the~~ any 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds~~ company of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);Subsidiaries; and (vi) the proceeds of which ~~will~~ shall be used by Holdings 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 by Holdings (or any direct or indirect parent of Holdings); (i) payments ~~due~~ made or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by Holdings, the Borrower or any of the Restricted ~~Subsidiary~~Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, ~~be permitted under this Agreement;~~ present or former employee, director, manager or consultant (~~vii~~or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) ~~the proceeds~~ and any repurchases of ~~which shall be used to pay cash,~~ Equity Interests in ~~lieu~~ consideration of ~~issuing fractional shares,~~ such payments including deemed repurchases in connection with the exercise of ~~warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and~~stock options; (~~viii~~j) ~~for~~ after a Qualified IPO and so long as no Event of Default has occurred and is continuing or would result therefrom, (i) any ~~taxable period for which~~ Restricted Payment by the Borrower ~~and/or~~ or any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ other direct or indirect parent of the Borrower ~~is the common parent (~~to pay listing fees and other costs and expenses attributable to being a ~~“Tax Group”), the proceeds of~~ publicly traded company which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years reasonable and customary and (Bii) ~~the amount of such~~ additional Restricted Payments in ~~respect of~~ an ~~Unrestricted Subsidiary shall be permitted only~~ aggregate amount per annum not to exceed an amount up to 6.0% the ~~extent that cash distributions were made~~ net proceeds received by ~~such Unrestricted Subsidiary to~~ (or contributed to) the Borrower ~~or any of~~ and its Restricted Subsidiaries ~~for~~ from such ~~purpose~~Qualified IPO; (hk) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (il) ~~redemptions, repurchases, retirements~~ Restricted Payments (A) made using the Cumulative Credit at such time so long as (1) no Event of Default exists or ~~other acquisitions of Equity Interests (i) deemed to occur on~~ would result from the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price~~ making of such ~~options or~~ Restricted Payment and (ii2) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of ~~amounts described in the foregoing~~ Restricted Payments using clause (~~ii)~~b) of the definition of “Cumulative Credit,” the Consolidated Total Net Leverage Ratio on a Pro Forma Basis would be less than or equal to 6.90:1.00 or (B) made using the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (l)(B) to the extent such Restricted Payment is made within 12 months of the date of designation of such Available Excluded Contribution Amount; (jm) ~~in addition to the foregoing Restricted Payments and~~ so long as no Event of Default shall have occurred and be continuing or would otherwise result therefrom, ~~the Borrower and the Restricted Subsidiaries may make additional~~ other Restricted Payments ~~in an aggregate amount since~~ such that the ~~First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of~~ Consolidated Total ~~Assets determined at the time of incurrence of such Indebtedness (calculated~~ Net Leverage Ratio on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is Basis would be less than or equal to 5.00:1.00; (kn) ~~after a Qualifying IPO~~distributions or payments of Securitization Fees; and (o) the Borrower may make Restricted Payments, in an aggregate amount not to exceed $50,000,000 in any calendar year, to pay for the redemption, acquisition, retirement or repurchase, in each case for nominal value, of Equity Interests of Holdings, the ~~declaration and payment of dividends on~~ Borrower (or any direct or indirect parent Holdings or the Borrower~~’s common stock~~ ) from a former investor of a business acquired in a Permitted Acquisition or similar Investment or a current or former employee, officer, director, manager or consultant of a business acquired in a Permitted Acquisition or similar Investment (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), which Equity Interest was issued as part of an earn-out or similar arrangement in the acquisition of such business, and which redemption, acquisition, retirement or repurchase relates to the failure of such earn-out to fully vest. All Restricted Payments made by a non-wholly owned Subsidiary shall be made on a pro rata basis or on a basis even more favorable to the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)

Restricted Payments. ~~Declare~~ Intermediate Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) ~~each~~ Intermediate Holdings and the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock; (b) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their Equity Interests; (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries; (d) the Restricted Subsidiaries may make Restricted Payments to Intermediate Holdings to permit Intermediate Holdings to make any Restricted Payment otherwise permitted under this Section 6.07 at such time, so long as Intermediate Holdings promptly applies the amount of any such Restricted Payment for such purpose; (e) Intermediate Holdings may make Permitted Tax Payments when due; (f) Intermediate Holdings may make Permitted Equity Issuances; (g) (i) any Restricted Party may make Restricted Payments to any other Loan Party (other than to Intermediate Holdings), (ii) any Restricted Foreign Subsidiary may make Restricted Payments to ~~the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ any other Restricted ~~Subsidiaries~~ Foreign Subsidiary and (iii) any Joint Venture may make Restricted Payments to each other owner of Equity Interests of such Joint Venture on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted ~~Subsidiary~~ Subsidiary) based on their relative ownership ~~interests of the relevant class of Equity Interests);~~interests; and (bh) ~~the Borrower and each of the Restricted Subsidiaries may declare and make dividend payments or~~ other ~~distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all~~ Restricted Payments ~~made pursuant to this Section 7.06(c~~(including scheduled payments of cash interest when due (at the non-default rate) in ~~excess~~ respect of ~~C$55,000,000 which are attributable~~ any Subordinated Indebtedness permitted to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this be incurred under Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (d6.01(u) to the extent ~~constituting Restricted Payments,~~ permitted by the ~~Borrower~~ applicable subordination agreement entered into between the Agent and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 holder of such options or warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (fIndebtedness), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiarythat, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, ~~the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and~~ (ii) ~~1.5% of Consolidated Total Assets determined~~ the Senior Leverage Ratio shall be at least 0.50:1.00 less than the ~~time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately~~ then in effect Senior Leverage Multiple, both before and after giving pro forma effect to ~~any~~ such ~~additional unlimited amounts of~~ Restricted Payment, (iii) the Total ~~Net~~ Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is~~ shall be at least 0.50:1.00 less than ~~or equal~~ the then in effect Total Leverage Multiple, both before and after giving pro forma effect to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment ~~would have complied with another provision of this Section 7.06; provided that~~ and (iv) the ~~making of~~ Fixed Charge Coverage Ratio shall not be less than the then in effect Fixed Charge Coverage Multiple, both before and after giving pro forma effect to such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Payment.

Appears in 3 contracts

Sources: Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (Madison Square Garden Co)

Restricted Payments. ~~Declare or make~~Make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made~~ in respect of working capital adjustments or purchase price adjustments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on any Permitted Acquisition or ~~prior to the date of determination is greater than or equal to 2.00:1.00~~ other permitted Investments and (ii) ~~for all Restricted Payments made pursuant~~ in order to ~~this Section 7.06(c) no Specified Default shall have occurred~~ satisfy indemnity and ~~be continuing or would result therefrom,~~ other similar obligations in ~~each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time~~ respect of ~~the making of such Restricted Payment~~any Permitted 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 6.17, 7.02 (other than ~~Section~~ 7.02(e) and 7.02(m)), ~~Section 7.03, Section 7.04, Section~~ 7.04 (other than 7.04(f)) or 7.05 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~7.05(e)(iv) and ~~7.08(m)(ii~~7.05(g)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings or any direct or indirect parent thereof, Holdings, or any Restricted Subsidiary of the Borrower ~~or any of the Restricted 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 ~~warrants or similar rights~~warrants; (f) ~~the~~ Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow the Borrower or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 or (ii) make Restricted Payments in the form of distributions to allow the Borrower or any direct or indirect parent of ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or Holdings or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ Holdings or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this ~~clause (f),~~ Section 7.06(f) shall not to exceed the greater of ~~(w) C$35,000,000~~ $7,800,000 and ~~(x) 1.1~~12% of Consolidated ~~Total Assets~~ EBITDA (~~calculated~~ determined on a Pro Forma ~~Basis~~Basis in accordance with Section 1.09) ~~in the aggregate~~ in any calendar year (~~it being understood that~~ 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 ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ 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 ~~years~~year following a Qualified IPO) carried over in any calendar year); ~~provided~~ provided, further, that such amount in any calendar year may further be increased by an amount not to exceed ~~(y)~~ the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~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 ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant~~ of (or i) the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ (ii) any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or (iii) any ~~Subsidiary thereof~~ of Holdings’ Restricted Subsidiaries, in each case in connection with a the repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this ~~Agreement~~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 ~~Restricted Subsidiaries~~ Borrower may make Restricted Payments to Holdings or any direct or indirect parent of ~~the Borrower~~Holdings: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and expenses, in each case, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate or ~~legal~~ 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) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries that are Loan Parties or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12~~ 6.11 and ~~Section 7.02;~~ (ivC) such contribution shall constitute an Investment by the ~~proceeds~~ Borrower or the applicable Restricted Subsidiaries, as the case may be, at the date of ~~which shall be used~~ such contribution or merger, as applicable, in an amount equal to ~~pay (or make~~ the amount of such Restricted ~~Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)~~Payment; (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ 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 ~~Section 7.08(c)(i~~Sections 6.17(c), (e~~), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w~~) and (yi) (but only to the extent such payments have not been and are not expected to be made by ~~the Borrower~~ Holdings or a Restricted Subsidiary); (vi) the proceeds of which ~~will~~ shall be used by Holdings to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary and reasonable fees and expenses (other ~~payment that would, if made~~ than to Affiliates) related to any unsuccessful equity or debt offering by ~~the Borrower~~ Holdings (or any ~~Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds~~ direct or indirect parent of which shall be used to pay cash, 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 such PersonsHoldings); and (~~viii~~vii) for any taxable period ~~for~~ in which the Borrower ~~and/or~~ and, if applicable, any of its Subsidiaries ~~are members~~ is a member of a consolidated, combined or similar income ~~Tax~~ tax group ~~for Tax purposes~~ of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), ~~the proceeds of which are necessary~~ to ~~permit the common parent~~ pay federal, foreign, state and local income taxes of such Tax Group ~~to pay the portion of any income Tax of such Tax Group for such taxable period~~ that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided ~~that (A)~~ that, for each taxable period, the amount of such ~~Restricted Payments for any~~ payments made in respect of such taxable period in the aggregate shall not exceed the amount that ~~amount of such Taxes that~~ the Borrower ~~and/or~~ and its ~~Subsidiaries, as applicable,~~ Subsidiaries would have ~~paid had Borrower and/or its applicable Subsidiaries,~~ been required to pay as ~~applicable, been~~ a stand-alone ~~taxpayer~~ consolidated, combined or similar income tax group; (i) payments made or ~~a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ expected to be ~~permitted only to the extent that cash distributions were~~ made by ~~such Unrestricted Subsidiary to~~ 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, 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 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 ~~for~~ from such ~~purpose~~Qualified IPO; (hk) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (il) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests~~ Restricted Payments (iA) ~~deemed to occur on~~ made using the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of~~ Cumulative Credit at such ~~options or~~ time so long as (iix) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of ~~amounts described~~ Restricted Payments made using clauses (a) and (b) of the Cumulative Credit only, no Default or Event of Default under Section 8.01(a) or 8.01(f) exists or would result from the making of such Restricted Payment and (y) in ~~the foregoing~~ respect of Restricted Payments made using clause (~~ii);~~b) of the Cumulative Credit only, Holdings 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 Borrower elects to apply to this clause (l)(B) to the extent such Restricted Payment is made within 12 months of the date of designation of such Available Excluded Contribution Amount; and (jm) ~~in addition to the foregoing Restricted Payments and~~ 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 and the Restricted Subsidiaries may make additional~~ other Restricted Payments ~~in an aggregate amount since~~ such that the Consolidated First ~~Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated~~ Lien Net Leverage Ratio on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is Basis would be less than or equal to ~~5.00:1.00; (k) after~~ 3.25:1.00. All Restricted Payments made by a ~~Qualifying IPO, the declaration and payment of dividends~~ non-wholly owned Subsidiary shall be made on ~~the Borrower’s common stock (and~~ a pro rata basis or on a basis even more favorable to the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: 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) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and to ~~the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment[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 ~~Section~~ 7.02(e~~) and 7.02(m~~)), ~~Section 7.03~~7.04 (other than 7.04(f)), ~~Section 7.04, Section~~ 7.05 (other than ~~Section 7.05(e~~7.05(e)(iv) and 7.05(g)) or ~~Section~~ 7.08 (other than ~~Section 7.08(i) and 7.08(m)(ii~~7.08(f)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (f) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may ~~pay (or~~ make Restricted Payments to allow Holdings to pay Holdings Administrative Costs and any ~~direct or indirect parent thereof~~ other liabilities permitted to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly be incurred by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made Holdings pursuant to Section ~~7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis~~7.14(b)(iv) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any ordinary course of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementbusiness; (g) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may make Restricted Payments to ~~any direct or indirect parent of~~ allow Holdings and/or the ~~Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof~~ Borrower to pay~~) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which Holdings, the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar ~~income Tax~~ tax group (including, for ~~Tax purposes~~ the avoidance of ~~which~~ doubt, a ~~direct or indirect parent of Borrower is the common parent~~ fiscal unity (fiscale eenheid)) (a “Tax Group”), ~~the proceeds of which are necessary to permit the common parent of such Tax Group~~ to pay the portion of ~~any income Tax~~ the consolidated, combined or similar Taxes of such Tax Group for such taxable period that ~~are~~ is attributable to the ~~income~~ other members of ~~Borrower and/or its Subsidiaries~~such Tax Group; provided that (Ai) the amount of such ~~Restricted Payments~~ payments for any taxable period shall not exceed ~~that~~ the amount of such Taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid had the Borrower and/or its ~~applicable~~ Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) ~~for all applicable tax years~~ and (Bii) ~~the amount of such Restricted Payments~~ 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 the Available Additional Basket at such time; provided, that (i) no Default or ~~any~~ Event of Default has occurred and is continuing or would result therefrom and (ii) after giving effect thereto, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently ended Test Period, shall be no greater than 6.50:1.00; (i) the Borrower and the Restricted Subsidiaries may pay ~~cash~~ (or make Restricted Payments to allow Holdings or any other direct or indirect parent of the Borrower to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Borrower or such Restricted Subsidiary (or Holdings or any other such parent of Borrower) by any future, present or former employee, consultant, officer or director of 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 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 ▇▇▇▇▇▇, 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, investor or shareholder agreement) with any employee, consultant, officer or director of such Borrower or such Restricted Subsidiary (or Holdings or any other such parent of Borrower), in an aggregate amount not to exceed in any twelve month period, $7 million (with unused amounts in any calendar year being permitted to be carried over to succeeding calendar years subject to a maximum of $5 million); provided that such amount in any calendar year may be increased by an amount not to exceed (a) the aggregate net cash proceeds from any issuance during such period of Equity Interests by Holdings (or any direct or indirect parent of Holdings), the Borrower and its Restricted Subsidiaries to such employees, officers, directors, consultants or representatives plus (b) the aggregate net cash proceeds from any payments on life insurance policies of which Holdings (or any direct or indirect parent of Holdings), the Borrower and its Restricted Subsidiaries is the beneficiary with respect to such employees, officers, directors or consultants the proceeds of which ~~shall be~~ are used to ~~enable it~~ repurchase, redeem or acquired Equity Interests of Holdings (or any direct or indirect parent of Holdings), the Borrower and 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 the aggregate increase contemplated by the preceding clauses (a) and (b) in any calendar year; (j) the Borrower and any Restricted Subsidiary may make Restricted Payments to acquire the Equity Interests held by any minority shareholder in any joint venture or Subsidiary that is not wholly-owned directly or indirectly by Borrower, subject to the limitations set forth in Section 7.02; (k) the Borrower or any Restricted Subsidiary may pay ~~cash)~~ cash in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (il) ~~redemptions~~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, ~~repurchases~~or withholding on issuance to, ~~retirements~~ any employee of the Borrower or ~~other acquisitions~~ any Restricted Subsidiary of Equity Interests of the Borrower (or Holdings or any other direct or indirect parent of the Borrower) in order to satisfy any applicable foreign, 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) ~~deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options~~ no Default or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 therefrom and (ii) ~~1.5% of Consolidated Total Assets determined~~ at the time ~~of incurrence of such Indebtedness~~ of, and after giving effect to, the payment thereof, the Consolidated Total Net Leverage ratio (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less shall be no greater than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.044.00:1.00; (o) ~~redemptions~~ Restricted Payments up to an amount in ~~whole or~~ any calendar year not to exceed 6% of Market Capitalization at the time such Restricted Payment is declared (after taking into account any other Restricted Payments previously made in ~~part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that~~ reliance upon this clause (o) during such ~~new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby~~calendar year); provided, ~~further,~~ that ~~such amounts are not included in Excluded Contributions.~~no Default or Event of Default has occurred and is continuing or would result therefrom; and (p) ~~the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of~~ any Restricted Payment within ~~sixty (60)~~ 60 days after the date of declaration ~~thereof~~or notice of such Restricted Payment, if at the date of ~~such~~ declaration ~~such~~ or notice, the Restricted Payment would have complied with ~~another provision~~ the provisions of this Section 7.06~~; provided~~ . For purposes of determining compliance with this Section 7.06, in the event that any Restricted Payment meets the ~~making~~ 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 reclassify or later divide, classify or reclassify such Restricted Payment (or any portion thereof) and will ~~reduce capacity for~~ only be required to include the amount and type of Restricted ~~Payments pursuant to such other provision when so made; and (r)~~ Payment in one or more of the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)above clauses.

Appears in 3 contracts

Sources: 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, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except~~except for: (a) ~~each Restricted Subsidiary may make Restricted Payments to~~ dividends payable by the Borrower ~~and to the other Restricted Subsidiaries (and,~~ solely in ~~the case~~ shares of ~~a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ any ~~other Restricted 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)~~its common stock; (b) Restricted Payments, of the type referred to in clause (a) of such definition, made by any Restricted Subsidiary to Persons that own Capital Stock in such Restricted Subsidiary, on a pro rata basis according to their respective holdings of the type of Capital Stock in respect of which such Restricted Payment is being made with any other shareholders if such Restricted Subsidiary is not wholly owned by the Borrower and ~~each of the~~ other wholly owned Restricted ~~Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower~~Subsidiaries; (c) any Restricted Payment (other than Restricted Investments in Unrestricted Subsidiaries), so long ~~as immediately~~ as, at the time of such Restricted Payment (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment on a Pro Forma Basis (x) the Loan Parties would be in compliance with the financial covenants set forth in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) and (y) the Consolidated Net Leverage Ratio recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) shall be less than 2.50:1.00; (d) any Restricted Payment, so long as, at the time of such Restricted Payment (i) ~~for~~ no Default or Event of Default has occurred and is continuing and (ii) the aggregate amount of all Restricted Payments made pursuant to this ~~Section 7.06(c) in excess of C$55,000,000 which are attributable to~~ clause (bd) shall not to exceed the greater of (x) $250,000,000 and (y) 1.67% of Consolidated Total Assets at any time outstanding in the ~~Available Amount~~aggregate during the term of this Agreement; and (e) any other Restricted Payment, as long as, at the ~~Fixed Charge Coverage Ratio (calculated~~ time of and after giving effect to such Restricted Payment on a Pro Forma Basis: (x) no Default or Event of Default has occurred and is continuing, (y) after giving effect to such Restricted Payment on a Pro Forma Basis the Consolidated Fixed Charge Coverage Ratio recomputed as of the ~~last day~~ end of the period of the four Fiscal Quarters most recently ended ~~Test Period on~~ for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or ~~prior to the date of determination is~~ (b) shall be greater than ~~or equal to 2.00:1.00~~ 2.00:1.0; and (iiz) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of ~~loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of~~ all Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received made by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or and the Restricted Subsidiaries after the Closing ~~Date; provided~~Date pursuant to this clause (e), ~~further~~is less than the sum, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any futurewithout duplication, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrowerof: (i) $500,000,000, plus (ii) 50% of Consolidated Net Income for the period (taken as one accounting period) from January 1, 2020 through and including the date of the most recent balance sheet included in the financial statements delivered by the Borrower pursuant to Section 5.1(a) or (b) at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (iii) 100% of the aggregate net cash proceeds ~~of which shall be used to pay~~ (or ~~make Restricted Payments~~ the Fair Market Value of property other than cash) received by the Borrower since the Closing Date as a contribution to ~~allow any direct~~ its common equity capital or ~~indirect parent thereof~~ from the issuance or sale of Capital Stock of the Borrower (other than the issuance of Disqualified Stock) or from the issuance or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Borrower, in either case, that have been converted into or exchanged for such Capital Stock of the Borrower (other than Capital Stock or Disqualified Stock or debt securities sold to ~~pay) operating costs and expenses~~ a Subsidiary of ~~such Persons 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~~Borrower), ~~which are reasonable and customary and incurred in the ordinary course of business, attributable~~ plus (iv) to the ~~ownership~~ extent that any Restricted Investment that was made after the Closing Date is (A) sold for cash or ~~operations~~ otherwise cancelled, liquidated or repaid for cash, the cash proceeds received with respect to such Restricted Investment (less the cost of disposition, if any) or (B) made in an entity that subsequently becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of the Restricted Investments owned by the Borrower and its Restricted ~~Subsidiaries;~~Subsidiaries in such entity at the time such entity becomes a Restricted Subsidiary, plus (iiv) 100% of the aggregate net cash proceeds ~~of which shall be used to pay~~ (or ~~make Restricted Payments to allow any direct or indirect parent thereof to pay~~the Fair Market Value of property other than cash) ~~franchise and similar Taxes, and other fees and expenses, required to maintain its (or any~~ received by the Borrower since the Closing Date by means of ~~such direct or indirect parent’s) corporate or legal existence; (iii) 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~~ sale (~~B) such Persons shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed~~ other than to the Borrower or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or (2B) ~~the merger, amalgamation, consolidation~~ a distribution or ~~sale of all or substantially all assets~~ dividend from an Unrestricted Subsidiary (other than in each case to the extent ~~permitted in Section 7.04) of the Person formed in order to consummate~~ such Investment constituted an Investment permitted under Section 7.4), in each case to the extent that such amounts were not otherwise included in the Consolidated Net Income for such period, plus (vi) in case, after the Closing Date, any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary under the terms of this Agreement or ~~acquired pursuant to such Investment~~has been merged, ~~as applicable~~consolidated or amalgamated with or into, ~~into~~ or transfers or conveys assets to, ~~as applicable,~~ or is liquidated into the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith an amount equal to the ~~extent such salaries, bonuses and other benefits are attributable to~~ Fair Market Value of the ~~ownership or operation of~~ Restricted Investments owned by the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of ~~incurrence of such Indebtedness~~ the redesignation, combination or transfer (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as or of the ~~last day of the most recently ended Test Period on~~ assets transferred or ~~prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO~~conveyed, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreementapplicable).

Appears in 3 contracts

Sources: Credit Agreement (Molina Healthcare, Inc.), Credit Agreement (Molina Healthcare, Inc.), Credit Agreement (Molina Healthcare, Inc.)

Restricted Payments. ~~Declare or make~~Neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by ‎Section 7.03) of ~~the Borrower~~such Person; (c) Restricted Payments made on or after the Closing Date in connection with the Transactions, including the settlement of claims or actions in connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, purchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 5.00 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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~~ Sections ‎7.02 (other than ~~Section 7.02(e~~Sections ‎7.02(e) and ~~7.02(m~~‎(m)), ~~Section 7.03, Section 7.04, Section 7.05~~ ‎7.04 or ‎7.08 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~Sections ‎7.08(e) and ~~7.08(m)(ii~~‎(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause ~~(f),~~ ‎(g) shall not to exceed ~~the greater of (w) C$~~$35,000,000 ~~and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ in any calendar year (~~it being understood that any~~ which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ 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 ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the extent contributed to the Borrower, the net cash proceeds ~~received by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity ~~Interests, Excluded Contributions~~ Interests or ~~amounts that increased the Available Amount~~Designated Equity Contributions) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~of the Borrower (to the extent contributed to the Borrower)~~ companies, in each case to any future, present or former ~~employee~~employees, ~~officer~~officers, ~~director~~members of management, ~~member of management~~ managers, directors or ~~consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ their respective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family Members) of the ~~Borrower or~~ Borrower, any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) 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 ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date; provided, further, that~~ cash proceeds described in clauses ‎(i) and ‎(ii) of this ‎Section 7.06(g); (1h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, when combined with prepayment of Indebtedness pursuant to ‎Section 7.13(a)(v), (x) the ~~aggregate increase contemplated by clauses~~ greater of (i) $230,000,000 and (ii) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and ~~(z) above in any calendar year and (2) cancellation~~ is continuing or would result therefrom, the portion, if any, of ~~Indebtedness owing to~~ the Cumulative Credit on such date that the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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,~~ business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ 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 direct 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of ~~Section 6.12 and Section 7.02~~‎Section 6.11; (ivvii) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings, the Borrower or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v)~~ company of the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted ~~Subsidiaries or~~ Subsidiaries; and (Bviii) the proceeds of which shall be used by Holdings or the Borrower to pay (or to make ~~payments permitted under Section 7.08(c)(i),~~ Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (~~e),~~ other than to Affiliates) related to any unsuccessful equity or debt offering by the Borrower (~~g), (h),~~ or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; (j~~), (k), (l), (m), (n), (o), (p), (r), (t), (w~~) ~~and (y) (but only to the extent such~~ payments ~~have not been and are not~~ made or expected to be made by the Borrower or a any of the Restricted ~~Subsidiary);~~ 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 (vior their respective Controlled Investment Affiliates and Immediate Family Members) ~~the proceeds~~ and any repurchases of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities Equity Interests in ~~connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement~~ consideration of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, payments including deemed repurchases in connection with the exercise of ~~warrants,~~ stock options or ~~other securities convertible into or exchangeable for Equity Interests~~ the issuance of ~~such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined~~ restricted stock units or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposestock based awards; (hk) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (ii) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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; (il) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments after a Qualified IPO and so long as no Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, (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 up to the sum of (A) up to 6.00% per annum of the net proceeds received by (or contributed to) the Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ from such Qualified IPO and (B) Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ per annum not to exceed ~~the greater of (i) C$50,000,000 and (ii) 1.5~~5.00% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00Market Capitalization; (km) ~~after~~ distributions or payments of Securitization Fees; (n) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a ~~Qualifying IPO~~result of, exercise of appraisal rights and the ~~declaration and payment~~ settlement of ~~dividends on~~ any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the ~~Borrower’s common stock (and~~ assets of the Borrower and its ~~restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends)~~Restricted Subsidiaries, ~~in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or~~ taken as a ~~Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO~~whole; (~~l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m~~o) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock 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 Borrower or a Restricted Subsidiary ~~by,~~ 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,~~ Subsidiaries the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) ~~the Original Transaction and~~ Restricted Payments that are made in (i) an amount equal to ~~effect~~ the ~~Original Transaction;~~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 acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent Not Otherwise Applied; and (q) the ~~making~~ payment of any ~~Restricted Payment~~ dividend or other distribution or the consummation of any irrevocable redemption within ~~sixty (60)~~ 60 days after the date of declaration ~~thereof~~of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of ~~such~~ declaration ~~such Restricted Payment~~ or notice, the dividend or other distribution or redemption payment would have complied with ~~another provision~~ the provisions of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)

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) each Restricted Subsidiary may make Restricted Payments to the Parent, the Borrower and ~~to the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Parent, the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) ~~so long as~~ any Restricted Payment; provided that the Restricted 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, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (de) 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 ~~Section~~ Sections 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05~~ 7.04 or 7.07 (other than ~~Section 7.05(e)~~Sections 7.07(d) or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii~~7.07(i)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Parent, the Borrower (or any ~~of the~~ direct or indirect parent thereof) or any Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (fg) the Parent, the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Parent or the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, ~~member of management~~ manager or consultant of such Restricted Subsidiary (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of~~ the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other ~~provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any~~ direct or indirect parent of thereof) or any of its Subsidiaries upon the ~~Borrower~~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 $20,000,000 in any fiscal year; provided further, no Event of Default shall have occurred and then be continuing; provided, further, 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 ~~which shall be used to pay~~ Equity Interests (other than Disqualified Equity Interests or ~~make Restricted Payments to allow~~ Designated Equity Contributions) of any of the Parent or the Borrower’s direct or indirect parent ~~thereof~~ companies, in each case to ~~pay) operating costs and expenses~~ 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 Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;Equity Interests have been Not Otherwise Applied; plus (ii) the net cash proceeds of ~~which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes~~key man life insurance policies received by the Parent, ~~and other fees and expenses, required to maintain its (~~the Borrower or any ~~of such direct or indirect parent’s) corporate or legal existence;~~Restricted Subsidiaries; less (iii) ~~to finance~~ the amount of any ~~Investment permitted to be~~ 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 ~~7.02~~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 (Athe aggregate amount of payments by the Parent pursuant to this Section 7.06(i) ~~such Restricted Payment shall~~ with respect to any fiscal year does not exceed the amount of taxes that the Parent would be ~~made substantially concurrently with the closing~~ required to pay in respect of such Investment and (B) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets income (to the extent ~~permitted in Section 7.04~~described above with respect to income attributable to Unrestricted Subsidiaries) of for such fiscal year were the ~~Person formed in order~~ Parent to ~~consummate~~ pay such ~~Investment or acquired pursuant to such Investment,~~ taxes as ~~applicable, into or to, as applicable, the Borrower or~~ a ~~Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02~~corporation for income tax purposes; (ivj) payments made using the ~~proceeds~~ Asset Sale RP Amount and/or the Specified Asset Sale RP Amount so long as no Event of ~~which~~ Default shall have occurred and be ~~used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees~~ continuing at the time of such payment and ~~expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)~~immediately after giving effect thereto; (vk) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security payments made or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the ~~Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security~~Parent, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the 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 deemed repurchases in connection with the exercise of stock options; (l) any Restricted Payments in connection with the Transactions; (m) the Parent, the Borrower or any Restricted Subsidiary may (a) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to 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 payments on convertible Indebtedness in accordance with its terms; (n) the 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 exercise or exchange price thereof, and any ~~Permitted Acquisition~~ purchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, ~~options~~ incentives or ~~other securities convertible into or exchangeable for~~ rights to acquire Equity Interests; (io) ~~redemptions~~the purchase, ~~repurchases, retirements~~ redemption or other ~~acquisitions~~ acquisition or retirement for value of Equity Interests ~~(i) deemed to occur on~~ of the ~~exercise~~ Parent or any Restricted Subsidiary representing fractional units of ~~options by the delivery of~~ such Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a ~~consolidation, amalgamation, merger, transfer of assets~~ merger or ~~acquisition that complies with Section 7.02~~ consolidation involving the Parent or ~~Section 7.04~~such Restricted Subsidiary or any other transaction permitted by this Agreement; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) payments to the ~~Original Transaction~~ General Partner constituting reimbursements for expenses in accordance with the Parent’s LPA as in effect on the Closing Date and ~~Restricted Payments made~~ as it may be amended or replaced thereafter; provided that any such amendment or replacement is not materially less favorable to ~~effect~~ the ~~Original Transaction;~~Parent in any material respect than the agreement prior to such amendment or replacement; and (q) in connection with an acquisition by the ~~making~~ Parent or any of its Restricted Subsidiaries, the return to the Parent or any of its Restricted ~~Payment within sixty (60) days after~~ Subsidiaries of Equity Interests of the ~~date~~ Parent or its Restricted Subsidiaries constituting a portion of ~~declaration thereof, if at~~ the ~~date~~ purchase consideration in settlement of ~~such declaration such Restricted Payment would have complied~~ indemnification claims or purchase price adjustments. For purposes of determining compliance with ~~another provision of~~ this Section 7.06~~; provided~~ , in the event that a Restricted Payment meets the ~~making~~ criteria of more than one of the categories of Restricted Payments described in clauses (a) through (m) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or ~~performance stock units as provided by the First Amendment Transaction Agreement and (B)~~ any portion thereof in ~~order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~a manner that complies with this Section 7.06.

Appears in 3 contracts

Sources: Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~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 to Holdings that are used by Holdings solely to fund cash interest payments required to be made by Holdings with respect to Indebtedness permitted to be incurred by Holdings pursuant to Sections 7.03(h), (j), (l), (r) and (t) (the “Holdings Restricted Payments Election”), the Borrower may make such Restricted Payments to Holdings in each case so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries ~~may make Restricted Payments~~ shall be in Pro Forma Compliance with an ~~amount not to exceed~~ Interest Coverage Ratio of at least 2.00:1.00 for the ~~Available Amount immediately prior~~ Test Period then most recently ended for which financial information has been delivered to the ~~time~~ Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) and evidenced by a certificate from the Chief Financial Officer of the ~~making of~~ Borrower demonstrating such ~~Restricted Payment~~compliance calculation in reasonable detail; (d) Restricted Payments made on the Closing Date used to fund the Transaction (including any amounts to be paid under, or contemplated by, the Merger Agreement) and the fees and expenses related thereto or owed to Affiliates, in each case with respect to any Restricted Payment to or owed to an Affiliate to the extent permitted by Section 7.08 and including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transaction) after the Closing Date 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 to such appraisal rights (in each case) as a result of the Merger; (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 ~~7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(f) and ~~7.08(m)(ii~~(g)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (fg) Holdings (or, after a Qualifying IPO of the Borrower ~~and~~ or an Intermediate Holding Company, the ~~Restricted Subsidiaries~~ Borrower or such Intermediate Holding Company, as the case may be) may (i) pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~direct or indirect parent thereof~~Intermediate Holding Company, as the case may be) ~~held~~ by any future, present or former ~~officers~~employee, ~~directors, employees, members~~ consultant or director of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower Holdings (or any direct or indirect parent of ~~the Borrower~~Holdings) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow 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, consultant or director of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries in ~~connection with~~ lieu of cash payments for the ~~death, disability~~repurchase, retirement or ~~termination~~ other acquisition or retirement for value of ~~employment~~ such Equity Interests held by such Persons, in each case, pursuant to any employee or ~~service~~ 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, consultant or director of ~~any such Person~~ Holdings (or ~~a breach~~ any direct or indirect parent of Holdings) or any ~~non-compete or other restrictive covenant or confidentiality obligations~~ of ~~any such Person at any time after such Person’s disability, retirement or termination~~ its Subsidiaries; provided that the aggregate amount of ~~employment or service~~Restricted Payments made pursuant to this clause (g) in ~~an aggregate amount after the First Amendment Effective Date~~any calendar year, ~~together~~ when combined with the aggregate amount of ~~loans and advances to~~ all cash payments (whether principal or interest) made by the ~~Borrower made~~ Loan Parties in respect of any promissory notes pursuant to Section ~~7.02(m~~7.03(j) in ~~lieu of Restricted Payments permitted by this clause~~ such calendar year, shall not exceed $10,000,000 (for, after a Qualifying IPO, $30,000,000), ~~not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood~~ provided that any unused amounts in any calendar year may be carried over to ~~the immediately~~ succeeding ~~three~~ 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 all 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 $20,000,000 (or, after a Qualifying IPO, $40,000,000); provided that any cancellation of Indebtedness owing to the Borrower in connection with and as consideration for a repurchase of Equity Interests of Holdings (or any of its direct or indirect parents) shall not be deemed to constitute a Restricted Payment for purposes of this clause (g); provided, further, that such amount in any calendar year may be increased by an amount not to exceed the remainder of (yx) the ~~cash proceeds~~ sum of (1) the amount of Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05) to the extent that such Net Cash Proceeds shall have been actually received by the Borrower through a capital contribution of such Net Cash Proceeds by Holdings (and to the extent not used to make an Investment pursuant to Section 7.02(o), a payment pursuant to Section 7.03(j), a prepayment of Senior Notes or ~~any~~ other Junior Financings pursuant to Section 7.13(a)(v), make Restricted Payments pursuant to Section 7.06(g) or (j) or make Capital Expenditures pursuant to Section 7.16(a)(ii)), in each case to employees, directors, officers, members of ~~the Restricted Subsidiaries from the sale~~ management or consultants of ~~Equity Interests~~ Holdings (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower~~ or any direct or indirect parent of ~~the Borrower (to the extent contributed to the Borrower~~Holdings) ~~to any future, present~~ or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries ~~or any direct or indirect parent of the Borrower~~ that occurs after the Closing ~~Date,~~ Date plus (z2) the net cash proceeds of key man life insurance policies received by Holdings, the Borrower or ~~the~~ any of its Restricted Subsidiaries after the Closing ~~Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses~~ Date less (y) ~~and~~ the aggregate amount of all Restricted Payments made after the Closing Date with the net cash proceeds described in preceding clause (x) (2) less (z) ~~above~~ the aggregate amount of all cash payments made in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner respect of any of promissory notes pursuant to Section 7.03(j) after the ~~foregoing) of~~ Closing Date in reliance on the ~~Borrower or any direct or indirect parent thereof or any Subsidiary thereof~~ last proviso appearing in ~~connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this~~ Section ~~7.06 or any other provision of this Agreement~~7.03(j); (gh) the Borrower and the Restricted Subsidiaries may make Restricted Payments to ~~any direct or indirect parent of the Borrower~~Holdings: (i) the proceeds of which ~~shall~~ will be used to pay (or to make Restricted Payments to allow any direct or indirect parent ~~thereof~~ of Holdings to pay) ~~operating costs and expenses~~ the amount any direct or indirect parent company of the Borrower would be required to pay in respect of Income Taxes attributable to the income of such ~~Persons~~ direct or indirect parent company, the Borrower and its Restricted Subsidiaries and Other Parent Subsidiaries; provided, however, that in each case the amount of such payments in any tax year are reduced by Income Taxes required to be paid by such direct or indirect parent company arising from businesses that are unrelated to the businesses conducted by the Other Parent Subsidiaries on the Closing Date after giving effect to the Transactions (except Income Taxes attributable to the income of Unrestricted Subsidiaries shall not reduce such payments to the extent such payments would otherwise be reduced by such Income Taxes and amounts are received from Unrestricted Subsidiaries to pay such Income Taxes); (ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings 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 $2,500,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any 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 thereof to pay)~~ franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (~~iii~~iv) the proceeds of which shall be used by Holdings 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 by Holdings pursuant to Section ~~7.02~~7.02 (other than clause (e) thereof); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the ~~closing thereof, cause~~ closing (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~Permitted Acquisition, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02;~~6.11; and (ivvi) 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) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no ~~Event of~~ Default shall have occurred and be continuing or would result therefrom, the Borrower ~~and the Restricted Subsidiaries~~ 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 ~~since~~ of (1) prepayments, redemptions, purchases, defeasances and other payments in respect of Senior Notes and other Junior Financings made pursuant to Section 7.13(a)(iv) and (2) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (i), $50,000,000; (j) so long as no Default shall have occurred and be continuing or would result therefrom, the ~~First Amendment Effective Date~~ Borrower may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an amount not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as Cumulative Growth Amount immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the ~~date~~ making of ~~determination is less than or equal to 5.00:1.00~~such Restricted Payment; (k) ~~after a Qualifying IPO~~cash payments in lieu of the issuance of fractional shares or interests in connection with the exercise of warrants, options or other rights or securities convertible into or exchangeable for Equity Interests of Holdings or any direct or indirect parent of Holdings; provided, that any such cash payment shall not be for the ~~declaration and payment~~ purpose of ~~dividends on~~ evading the limitation of this covenant (as determined in good faith by the Board of Directors of the Borrower~~’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends~~), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Holdings may make Restricted Payments ~~that are made~~ with ~~Excluded Contributions~~ the Net Cash Proceeds of Permitted Holdings Debt and Permitted Equity Issuances by Holdings (in each case, to the extent ~~Not Otherwise Applied;~~any such proceeds are not otherwise contributed to (or required to be contributed to) the Borrower); and (m) ~~the distribution~~repurchases, redemptions and other acquisitions of Equity Interests in Employment Participation Subsidiaries held by ~~dividend~~ current or ~~otherwise, of shares of capital stock~~ former restaurant employees of, ~~or Indebtedness owed to~~ and development partners with, the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsRestricted Subsidiaries. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 3 contracts

Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Cheeseburger-Ohio, Limited Partnership), Credit Agreement (Osi Restaurant Partners, LLC)

Restricted Payments. ~~Declare or make~~Make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to ~~the Borrower~~ GBT and to ~~the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to ~~the Borrower~~ GBT and any other Restricted ~~Subsidiaries~~ Subsidiary and ratably (or on a less than ratable basis) to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity ~~Interests~~Interests in such Restricted Subsidiary); (bi) GBT may repurchase or redeem in whole or in part any of its Equity Interests with proceeds from substantially concurrent equity contributions made to GBT or issuances of new Equity Interests by GBT (other than Disqualified 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 repurchased or redeemed thereby and (ii) GBT, each Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ any Restricted Payment payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~GBT; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ Restricted Payments made ~~pursuant~~ on the Restatement Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted PaymentTransactions; (d) to the extent constituting Restricted Payments, GBT, the ~~Borrower~~ Borrowers and ~~the~~ their Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section ~~7.02(e) and 7.02(m~~7.02(f)), Section ~~7.03~~7.04 or Sections 7.07(d), ~~Section 7.04~~(h), ~~Section 7.05~~ (~~other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~j) and ~~7.08(m)(ii)~~(l); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the ordinary course of business in any Borrower (or any ~~of the~~ Parent Entity) or any Restricted ~~Subsidiaries~~ Subsidiary deemed to occur upon ~~exercise~~ exercise, vesting and/or settlement of ~~stock options or warrants or similar rights~~ Equity Interests if such Equity Interests represent a portion of the exercise price thereof or any portion of ~~such options or warrants~~ required withholding or similar ~~rights~~taxes due upon the exercise, vesting and/or settlement thereof; (f) ~~the Borrower and the~~ GBT or any Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow ~~any direct or indirect parent thereof~~ GBT to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ GBT (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~direct or indirect parent thereof~~Equity Interests) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any futureany, present or former employee, ~~officer,~~ director, ~~member of management~~ officer or ~~consultant~~ other individual service provider (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ any Affiliates or ~~former domestic partner~~ any Immediate Family Members of any of the foregoing) of any of the Borrowers or any of GBT’s Subsidiaries (i) permitted pursuant to the Management Incentive Plan or as otherwise approved by the Board of Directors of GBT in accordance with the Management Incentive Plan (or permitted pursuant to the Incentive Equity Plan or ESPP (as such terms are defined in the Business Combination Agreement) or as otherwise approved by the Board of Directors of GBT in accordance with such plans or (ii) 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 option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, subscription agreement, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement) with any employee, director, officer or other individual service provider of GBT, any Borrower or any Subsidiary of GBT; provided that any such payments under this clause (ii), measured at the time made, shall not exceed an amount equal to: (1) the greater of (x) $45,000,000 and (y) 10% of Consolidated EBITDA of GBT and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Restricted Payment is made (measured as of such date) based upon the Section 6.01 Financials most recently delivered on or prior to such date, in each case, in any ~~direct or indirect parent~~ fiscal year; provided that any unused portion of the ~~Borrower that occurs~~ preceding basket for any calendar year may be carried forward to the next succeeding calendar year, so long as the aggregate amount of all Restricted Payments made pursuant to clause (ii) of this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed the ~~Closing Date~~greater of (x) $85,000,000 and (y) 20% of Consolidated EBITDA of GBT and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Restricted Payment is made (measured as of such date) based upon the Section 6.01 Financials most recently delivered on or prior to such date, in each case, in any fiscal year, plus (z2) all net cash proceeds obtained by (x) GBT and contributed to the Initial Borrower or (y) the Initial Borrower, in each case during such calendar year from the sale or issuance of such Equity Interests to other present or former officers, employees, directors and other individual service provider in connection with any compensation and incentive arrangements, plus (3) all net cash proceeds ~~of key~~ obtained from any key-man life insurance policies received by ~~the~~ any Borrower or ~~the~~ any of its Restricted Subsidiaries ~~after~~ (or any Parent Entity thereof to the ~~Closing Date~~extent contributed to the Initial Borrower) during such calendar year, minus (4) the aggregate principal amount of all Indebtedness incurred by any Loan Party pursuant to Section 7.03(l) during such calendar year; provided that any unused portion of the preceding basket calculated pursuant to clauses (1) through (4) above for any calendar year may be carried forward to immediately succeeding calendar year; provided, further, that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to ~~the~~ any Borrower (or any ~~Restricted Subsidiary~~ Parent Entity) or any of GBT’s Subsidiaries from employees, directors, officers or other individual service provider of any ~~future~~Borrower, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the ~~foregoing) of the Borrower~~ Initial Borrower’s Parent Entities or any ~~direct or indirect parent thereof or any Subsidiary thereof~~ of GBT’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of ~~the Borrower or any direct or indirect parent thereof~~ GBT will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries[reserved]; (iih) ~~the proceeds of which shall be used to pay (or make Restricted Payments to allow~~ GBT, any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted ~~Subsidiary~~Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, ~~be permitted under~~ if at the date of declaration such payment would have complied with the provisions of this Agreement; (~~vii~~i) ~~the proceeds of which shall be used to pay cash~~GBT, ~~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 such Persons; and (viii) for~~ any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any ~~of its~~ Restricted ~~Subsidiaries for such purpose;~~ Subsidiary may (ha) ~~the Borrower or any of the Restricted Subsidiaries may~~ pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition ~~or any exercise of warrants, options~~ (or other ~~securities~~ similar permitted Investment) and (b) honor any conversion request by a holder of convertible ~~into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions~~ Indebtedness and make cash payments in lieu 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases fractional shares in connection with ~~the exercise of stock options~~ any such conversion and ~~any cash payment~~ may make payments on convertible Indebtedness in ~~respect of amounts described in the foregoing clause (ii)~~accordance with its terms; (j) in addition to the foregoing Restricted Payments, GBT or any of its Restricted Subsidiaries (i) may make additional Restricted Payments ~~and so long as~~ in an aggregate amount not to exceed an amount equal to the Total Available Amount at the time such Restricted Payment is paid; provided that, at the time of any such Restricted Payment made utilizing the Total Available Amount, (x) no Event of Default shall have occurred and be continuing or would result ~~therefrom~~therefrom and (y) the pro forma Total Net Leverage Ratio shall not exceed 3.25:1.00, ~~the Borrower and the Restricted Subsidiaries~~ (ii) may make additional Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed (I) the greater of (ix) ~~C$50,000,000~~ $85,000,000 and (iiy) ~~1.5~~20% of Consolidated ~~Total Assets determined at~~ EBITDA of GBT and its Restricted Subsidiaries for the ~~time of incurrence~~ Test Period most recently ended on or prior to the date such Restricted Payment is made (measured as of such ~~Indebtedness~~ date) based upon the Section 6.01 Financials most recently delivered on or prior to such date minus (~~calculated on a Pro Forma Basis~~II) ~~plus~~ any General RP Basket Reallocated Amount and (iii) may make additional ~~unlimited amounts~~ Restricted Payments so long as ~~immediately after giving effect to any such additional unlimited amounts~~ (x) no Event of ~~Restricted Payment,~~ Default shall have occurred and be continuing or would result therefrom and (y) the Total Net Leverage Ratio (is less than or equal to 3.00:1.00, calculated on a ~~Pro Forma Basis)~~ pro forma basis, as of the last day of the most recently ended Test ~~Period on or prior to the date of determination is less than or equal to 5.00:1.00~~Period; (k) ~~after~~ the declaration and payment by GBT of dividends on the common stock or common equity interests of GBT in an amount not to exceed 6% of the proceeds received by GBT in connection with the consummation of the transactions contemplated by the Business Combination Agreement; (l) GBT and any Restricted Subsidiary may pay (or may make Restricted Payments to allow any Parent Entity to pay) Restricted Payments in an amount equal to withholding or similar taxes payable or expected to be payable by any future, present or former employee, director, manager, consultant or other individual service provider (or any of their respective Affiliates or 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; (m) payments made to optionholders of GBT in connection with, or as a ~~Qualifying IPO~~result of, any distribution being made to shareholders of GBT (to the extent such distribution is otherwise permitted hereunder), which payments are being made to compensate such optionholders as though they were shareholders at the time of, and entitled to share in, such distribution (it being understood that no such payment may be made to an optionholder pursuant to this clause to the extent such payment would not have been permitted to be made to such optionholder if it were a shareholder pursuant to any other paragraph of this Section 7.06 and, for the avoidance of doubt, shall be deemed to utilize any basket availability in any such other paragraph); (n) the declaration and payment of dividends ~~on the Borrower’s common~~ to holders of any class or series of Disqualified Equity Interest of GBT, any Borrower or any Restricted Subsidiary or any class or series of preferred stock ~~(and the Borrower and its restricted Subsidiaries may pay dividends to~~ of any ~~of its parents to permit such parent to pay such dividends)~~Restricted Subsidiary, in ~~the aggregate~~ each case, Incurred in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOaccordance with Section 7.03; (lo) ~~Restricted Payments that are made~~ the Loan Parties may make any payment or prepayment in connection with ~~Excluded Contributions to the extent Not Otherwise Applied~~any Refinancing Amendment Debt; (mp) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock of,~~ an Unrestricted Subsidiary or Indebtedness owed to ~~the Borrower~~ GBT or a Restricted Subsidiary ~~by,~~ of an Unrestricted ~~Subsidiaries~~ 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 ~~Subsidiaries~~Subsidiary), in each case, so long as the primary assets of ~~which~~ such Unrestricted Subsidiary are not cash ~~and~~ or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction;and (q) Specified Subordinated Debt may be converted to Equity Interests (other than Disqualified Equity Interests) of GBT. For purposes of determining compliance with this Section 7.06, in the ~~making~~ event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Initial Borrower may, 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 ~~within sixty~~ (60or any portion thereof) ~~days after~~ so long as the ~~date~~ Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception or exceptions as of ~~declaration thereof, if at~~ the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)reclassification.

Appears in 2 contracts

Sources: Amendment No. 1 (Global Business Travel Group, Inc.), Credit Agreement (Global Business Travel Group, Inc.)

Restricted Payments. ~~Declare or make, directly~~ Directly or indirectly, make any Restricted Payment, ~~except~~other than: (a) ~~each Restricted Subsidiary may make~~ Restricted Payments to in an amount, together with the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by clauses (i), (ii)(with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (C) thereof only), (vi)(C) and (viii), of Section 6.03(b), but excluding all other Restricted ~~Subsidiaries (and, in~~ Payments permitted by Section 6.03(b)) not to exceed the ~~case of a~~ Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, Available Amount; provided that (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no ~~Specified~~ Default shall have occurred and be continuing or would ~~result therefrom~~occur as a consequence thereof and (ii) the Consolidated Secured Debt Ratio (determined on a Pro Forma Basis) will not be greater than the Financial Covenant Level. (b) Section 6.03(a) will not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (A) the redemption, repurchase, retirement or other acquisition of any (1) Equity Interests (“Treasury Capital Stock”) of the Borrower or any Restricted Subsidiary or Subordinated Indebtedness of the Borrower or any Guarantor or (2) Equity Interests of any direct or indirect parent company of the Borrower, in the case of each ~~case~~ of clause (1) and (2), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of, Equity Interests of the Borrower, or any direct or indirect parent company of the Borrower to the extent contributed to the capital of the Borrower or any Restricted Subsidiary (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and payment of dividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted ~~Subsidiaries may make Restricted Payments in an amount not to exceed~~ Subsidiary) of the ~~Available Amount~~ Refunding Capital Stock, and (C) if immediately prior to the ~~time~~ retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (vi)(A) or (B) of this Section 6.03(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the ~~making~~ Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such ~~Restricted Payment~~Treasury Capital Stock immediately prior to such retirement; (diii) the redemption, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Borrower or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Borrower or a Guarantor, as the case may be, which is incurred in compliance with Section 6.01 so long as: (A) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired for value, plus the amount of any premium required to be paid under the terms of the instrument governing the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired and any fees and expenses incurred in connection with the issuance of such new Indebtedness; (B) such new Indebtedness is subordinated to the Obligations at least to the same extent ~~constituting~~ as such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or retired for value; (C) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired; and (D) such new Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired; (iv) Restricted ~~Payments~~Payments to pay for the repurchase, ~~the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision~~ retirement or other acquisition or retirement for value of ~~Section 7.02~~ Equity Interests (other than ~~Section 7.02(e~~Disqualified Stock) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of ~~Equity Interests in~~ the Borrower or any of its direct or indirect parent companies held by any future, present or former director, officer, employee, member of management or consultant of the Borrower, any of its subsidiaries or any of their respective direct or indirect parent companies and their respective estates, heirs, family members, spouses or former spouses, and any tax related thereto; provided, however, that the aggregate Restricted Payments made under this clause (iv) do not exceed in any calendar year $2,500,000 (with unused amounts in any calendar year being carried over to succeeding calendar years, subject to a maximum amount after giving effect to such carry over of $5,000,000 in any calendar year); 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 Stock and Designated Preferred Stock) of the Borrower and, to the extent contributed to the capital of the Borrower, Equity Interests of any of the direct or indirect parent companies of the Borrower, in each case to directors, officers, employees, members of management or consultants of the Borrower, any of its subsidiaries or any of their respective direct or indirect parent companies (or their respective estates, heirs, family members, spouses or former spouses) that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not been (and will not be) otherwise applied to increase the Restricted Payment Available Amount; plus (B) the cash proceeds of key man life insurance policies received by the Borrower or any of its Restricted Subsidiaries after the Closing Date; less (C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (iv); (v) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any of its Restricted Subsidiaries issued in accordance with Section 6.01; (vi) (A) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock issued by the Borrower or any of its Restricted Subsidiaries after the Closing Date, provided that the amount of dividends paid pursuant to this clause (A) shall not exceed the aggregate amount of cash actually received by the Borrower or a Restricted Subsidiary from the issuance of such Designated Preferred Stock; (B) a Restricted Payment to a direct or indirect parent company of the Borrower, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock of such parent corporation issued after the Closing Date, provided that the amount of Restricted Payments paid pursuant to this clause (B) shall not exceed the aggregate amount of cash actually contributed to the capital of the Borrower from the sale of such Designated Preferred Stock; and (C) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this Section 6.03(b); provided, however, in the case of each of clause (A), (B) and (C) of this clause (vi), that (x) for the most recently ended four full fiscal quarters for which financial statements have been delivered (or required to have been delivered) pursuant to Section 5.04 or, prior to the delivery or required delivery of the first such financial statements, referred to in Section 3.05(b), immediately preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, the Consolidated Secured Debt Ratio (determined after giving effect to such issuance or declaration on a Pro Forma Basis) will not be greater than the Financial Covenant Level and (y) the proceeds of any such issuance have not been applied to increase the Restricted Payment Available Amount; (vii) repurchases of Equity Interests 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 ~~warrants or similar rights~~warrants; (fviii) the ~~Borrower~~ declaration and payment of dividends on the ~~Restricted Subsidiaries may pay~~ Borrower’s common stock (or ~~make~~ a Restricted ~~Payments~~ Payment to ~~allow~~ any direct or indirect parent ~~thereof~~ entity to ~~pay~~fund a payment of dividends on such entity’s common stock), ~~so long as~~ following the first public Equity Offering of such common stock after the Closing Date, of up to 6% per annum of the net cash proceeds received by (or, in the case of ~~any payment in respect of Equity Interests of any~~ a Restricted Payment to a direct or indirect parent entity, contributed to the capital of) the Borrower in or from any such public Equity Offering; (ix) Restricted Payments that are made with Excluded Contributions; provided that the proceeds from such Excluded Contributions shall be used within 180 days after the date of such Excluded Contribution; (x) any Restricted Payment used to fund the ~~Borrower~~Transactions and the fees and expenses related thereto or owed to Affiliates, and to the extent constituting Restricted Payments, the ~~amount of such~~ Borrower and its Restricted ~~Payment is directly attributable~~ Subsidiaries may enter into and consummate transactions to the ~~Equity Interests of the Borrower owned directly or indirectly by such parent~~extent permitted under Section 6.06(b) ~~for~~ (other than clause (viii) thereof); (xi) the repurchase, ~~retirement~~ redemption or other acquisition or retirement for value of ~~Equity Interests~~ any Subordinated Indebtedness upon the occurrence of a Change of Control (so long as such Change of Control has been waived by the Required Lenders); (xii) the declaration and payment of dividends or the payment of other distributions by the Borrower (to, or ~~such~~ the making of loans or advances to, any of its direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or companies in amounts required for any direct or indirect parent companies to pay, in each case without duplication: (A) general corporate operating and overhead costs and expenses of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent company of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such ~~salaries, bonuses~~ costs and ~~other benefits~~ expenses are attributable to the ownership or operation of the Borrower and its Restricted ~~Subsidiaries or~~ Subsidiaries, in an aggregate amount not to exceed $2,500,000 in any fiscal year; (B) ~~shall be used~~ franchise taxes and other fees, taxes and expenses, without duplication of any amounts provided for in any tax sharing agreements or arrangements, required to ~~make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to~~ maintain the ~~extent such payments have not been and are not expected to be made by~~ corporate existence of the Borrower and its Subsidiaries or ~~a Restricted Subsidiary)~~any direct or indirect parent thereof; (viC) federal, foreign, state and local income taxes, without duplication of any amounts provided for in any tax sharing agreements or arrangements; and provided that, in each fiscal year, the ~~proceeds~~ amount of ~~which will~~ such payments shall not exceed the amount that the Borrower and its Restricted Subsidiaries would be ~~used~~ required to ~~make payments due~~ pay in respect of federal, foreign, state and local income taxes as a stand-alone consolidated or ~~expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding~~ combined tax group and ~~other~~ less any taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made directly by the Borrower or any of its Restricted ~~Subsidiary, be~~ Subsidiaries; (D) fees and expenses related to any equity or debt offering of such parent entity (whether or not successful) and any Investment otherwise permitted under this ~~Agreement;~~covenant (whether or not successful); and (~~vii~~E) ~~the proceeds of which shall be used to pay cash,~~ cash payments in lieu of issuing fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any ~~of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any~~ direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interestsparent; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (mxiii) the distribution, by dividend or otherwise, of shares of ~~capital stock~~ Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, in each case, the primary assets of which are cash ~~and~~ and/or Cash ~~Equivalents~~Equivalents that were contributed to such Unrestricted Subsidiaries as an Investment pursuant to clause (h) or (m) of the definition of “Permitted Investments”); (nxiv) ~~Restricted Payments~~ payments or distributions to ~~satisfy appraisal or other dissenters’ rights~~dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, ~~amalgamation, merger,~~ merger or transfer of all or substantially all of the assets ~~or acquisition~~ of the Borrower and its Restricted Subsidiaries, taken as a whole, that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests6.04; provided that ~~such new Equity Interests contain terms and provisions at least~~ if as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date a result of such ~~declaration~~ consolidation, merger or transfer of assets, a Change of Control has occurred, such ~~Restricted Payment would have complied with another provision~~ Change of ~~this Section 7.06; provided that~~ Control has been consented to or waived by the ~~making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made~~Required Lenders; and (rxv) the ~~First Amendment Transactions and Restricted Payments made~~ repurchase, redemption, acquisition or retirement for value of, or other payments with respect to, or distributions or dividends to ~~effect~~ Holdings or any direct or indirect parent thereof to permit Holdings or any direct or indirect parent thereof to make the ~~First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders~~ repurchase, redemption, acquisition or retirement for value of, or other payments with respect to, restricted Equity Interests of ~~restricted stock or performance stock units as provided~~ the Company contemplated by the ~~First Amendment Transaction~~ Acquisition Agreement in an aggregate amount for all periods after the Closing Date not to exceed $21,000,000; provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (viii) (as determined at the time of the declaration of such dividend) and (Bxiii), no Default shall have occurred and be continuing or would occur as a consequence thereof. (c) As of the Closing Date, all of the subsidiaries of the Borrower will be Restricted Subsidiaries. The Borrower will not permit (x) any Restricted Subsidiary to become an Unrestricted Subsidiary except pursuant to Section 5.10(a) or (y) any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to Section 5.10(b). For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Borrower and its Restricted Subsidiaries (except to the extent repaid) in ~~order~~ the subsidiary so designated will be deemed to ~~satisfy indemnity~~ be an Investment made at such time in an amount determined as set forth in the last sentence of the definition of “Investments.” Such designation will be permitted only if an Investment in such amount would be permitted at such time, whether pursuant to Section 6.03(a) or the definition of “Permitted Investments,” and ~~other similar obligations under~~ if such subsidiary otherwise meets the ~~First Amendment Transaction Agreement)~~definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the mandatory prepayments, representations and warranties, covenants or events of default set forth in the Loan Documents.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Blackboard Inc), Second Lien Credit Agreement (Blackboard Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.13 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.13; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ 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 ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of~~ taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of the Borrower ~~and/or~~ 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 Section 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 from such Qualifying IPO; provided that ~~(A) the amount of~~ immediately before and immediately after giving effect to any such Restricted ~~Payments for any taxable period~~ Payment, no Default or Event of Default shall ~~not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would~~ have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years~~ occurred and ~~(B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ be ~~permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~continuing; (h) ~~the Borrower or any of the Restricted Subsidiaries may pay cash (or make~~ Restricted Payments ~~to any direct~~ (including payments on stock appreciation rights) made on the Closing Date or ~~indirect parent the proceeds of which shall be used to enable it to pay cash)~~ within 60 days thereafter, in ~~lieu of fractional Equity Interests~~ each case in connection with ~~any dividend, split or combination thereof, any Permitted~~ the Transactions and in accordance with the Acquisition ~~or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Agreement; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~(i) deemed~~ of Parent, Holdings, the Borrower or any Restricted Subsidiary to ~~occur on~~ fund the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration~~ payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii)~~options; (j) in addition to the foregoing Restricted ~~Payments and~~ 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 and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 therefrom and (iiy) ~~1.5% of Consolidated~~ the Total ~~Assets determined~~ Leverage Ratio as at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day end of the most recently ended ~~Test Period on or prior~~ fiscal quarter of the Borrower for which financial statements are available to ~~the date of determination is less than or equal to~~ does not exceed 5.00:1.00;; and (k) ~~after a Qualifying IPO,~~ Restricted Payments consisting of the ~~declaration and payment~~ proceeds of ~~dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to~~ any ~~of its parents to permit such parent to pay such dividends~~Disposition permitted under Section 7.05(n), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent ~~Not Otherwise Applied; (m)~~ made in accordance with the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsAcquisition Agreement. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: 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 Loan Party may make Restricted Payments to any other Loan Party, (ii) each Restricted Subsidiary that is not a Loan Party may make Restricted Payments to the Borrower or any Restricted Subsidiary and (iii) so long as no Default exists or would be caused thereby, each Restricted Subsidiary may make Restricted Payments to ~~the Borrower and to the~~ any Person other ~~Restricted Subsidiaries (and,~~ than a Relevant Party that owns a direct Equity Interest in ~~the case of a Restricted Payment by a non-Wholly Owned~~ such Restricted Subsidiary, ~~to the Borrower and any~~ so long as no Person other than a Restricted ~~Subsidiaries and to each other owner of Equity Interests~~ Subsidiary receives more than its ratable share of such Restricted ~~Subsidiary based on~~ Payments, determined according to their ~~relative ownership interests~~ respective holdings of the ~~relevant class~~ type of Equity ~~Interests)~~Interest in respect of which such Restricted Payments are being made; (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments~~ dividends or ~~other~~ distributions payable solely in ~~the~~ Equity Interests ~~(other than Disqualified Equity Interests)~~ of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the ~~Restricted Subsidiaries may make Restricted Payments in an amount not to exceed~~ proceeds received from the ~~Available Amount immediately prior to the time~~ substantially concurrent issue of ~~the making of such Restricted Payment~~new common Equity Interests; (d) ~~to the extent constituting Restricted Payments,~~ the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)make Restricted Payments described in Schedule 7.06(d); (e) ~~redemptions~~the Borrower may purchase, ~~repurchases, retirements~~ redeem or ~~other acquisitions of~~ otherwise acquire its common Equity Interests in from the underwriters of the initial public offering of the Borrower or in connection with any ~~of the Restricted Subsidiaries deemed to occur upon~~ exercise of ~~stock options or warrants or similar rights if such Equity Interests represent a portion of~~ their “greenshoe” option as contemplated by the ~~exercise price of such options or warrants or similar rights;~~Registration Statement; and (f) ~~the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay,~~ so long as ~~in the case~~ no Default or Event of ~~any payment in respect of Equity Interests of any direct~~ Default exists or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may would be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxescaused thereby, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (only to the extent permitted ~~in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable~~by its Partnership Agreement, the Borrower ~~or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or~~ may make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith distributions 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any holders of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous up to the ~~Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions~~amount of Available Cash. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)

Restricted Payments. ~~Declare~~ The Borrower and each other Obligor will not, and will permit any of its Restricted Subsidiaries to, declare, make, order, pay any sum for, or ~~make~~set apart assets for a sinking or other analogous fund for, directly or indirectly, any Restricted ~~Payment, except~~Payment except for: (a) ~~each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and,~~ in the case of ~~a Restricted Payment by a non-Wholly Owned~~ any Restricted Subsidiary, the declaration and payment of dividends or other distributions to its equity holders, so long as any such dividends or other distributions to the ~~Borrower~~ Obligors and ~~any~~ other Restricted Subsidiaries ~~and~~ that are equity holders are at least pro rata to ~~each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of~~ the relevant ~~class~~ portion of ~~Equity Interests)~~equity held by such Obligor and such other Restricted Subsidiaries; (b) in the case of the Borrower and ~~each~~ any of its Subsidiaries, the ~~Restricted Subsidiaries may declare~~ declaration and ~~make dividend payments~~ payment of dividends or other distributions payable solely in ~~the~~ its Equity Interests (other than Disqualified Equity Interests~~) of the Borrower~~; (c) ~~so long as immediately after giving effect to such Restricted Payment,~~ (i) ~~for all Restricted Payments made pursuant to this Section 7.06(c~~the delivery or issuance of shares of common stock (and cash in lieu of fractional shares) ~~in excess~~ required by the terms of ~~C$55,000,000 which are attributable to clause (b) of the Available Amount~~any Convertible Indebtedness, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of ~~such Restricted Payment~~required interest payments with respect to any Convertible Indebtedness permitted hereunder; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or ~~would result therefrom~~be caused thereby, ~~the Borrower and the Restricted Subsidiaries may make additional~~ other Restricted Payments ~~in an aggregate amount since the First Amendment Effective Date~~ not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts otherwise permitted by this Section 6.04, so long as as, immediately after giving effect ~~to any such additional unlimited amounts of Restricted Payment~~thereto, (i) the Total Net Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of~~ shall not exceed 5.00 to 1.00 for the most recently ended Test Period ~~on or prior~~ and (ii) the Secured Net Leverage Ratio shall not exceed 3.00 to 1.00 for the ~~date of determination is less than or equal to 5.00:1.00~~most recently ended Test Period; (ke) any Restricted Subsidiary may make Restricted Payments to the Borrower, the other Restricted Subsidiaries of the Borrower and other holders of its equity securities, provided that the portion of any Restricted Payments paid to holders of its equity securities other than the Obligors and their respective Restricted Subsidiaries is not greater than the percentage of equity securities of such Obligor or such Restricted Subsidiary, as applicable, owned by such other Persons; (f) the Borrower may exercise its option to convert certain shares of common stock of the Borrower held in escrow to cash pursuant to Section 2.3(f) of that certain Stock Purchase Agreement dated as of January 1, 2023 by and between the Borrower, certain shareholders of Conductor Technologies, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Conductor Technologies, Inc.; provided that the aggregate Restricted Payments made under this clause (f) do not exceed $9,084,514.53; (g) the repurchase, redemption, retirement or other acquisition of Equity Interests from (i) current and former employees, officers, directors, consultants or other persons performing services for the Borrower or any direct or indirect Subsidiary pursuant to the terms of stock repurchase plans, restricted stock agreements or similar agreements under which the Borrower or any direct or indirect Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal and (ii) other stockholders of the Borrower; provided that the aggregate Restricted Payments made under this clause (g) do not exceed (A) prior to a Public Listing, $100,000,000 in any Fiscal Year or (B) after a ~~Qualifying IPO~~Public Listing, an amount equal to the ~~declaration~~ greater of $55,000,000 and ~~payment~~ 10% of ~~dividends~~ Consolidated Adjusted EBITDA for the prior four Fiscal Quarter period ending on or most recently prior to such date; provided further that any unused amounts in any Fiscal Year may be carried forward to the next succeeding Fiscal Year; (h) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) of the Borrower~~’s common stock~~ , or any Equity Interests of any direct or indirect Subsidiary, in exchange for, or out of the proceeds of the substantially concurrent sale or issuance (~~and~~ other than to a Subsidiary) of, Equity Interests of the Borrower ~~and its restricted Subsidiaries may pay dividends to~~ or any ~~of its parents to permit such parent to pay such dividends), in~~ direct or indirect Subsidiary (other than the ~~aggregate in any calendar year of up~~ Borrower) or management investment vehicle to the ~~sum of (i) 6.00% of the Net Cash Proceeds received by or~~ extent contributed to the Borrower ~~or a Restricted Subsidiary~~ (in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distributioneach case, ~~by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (~~other than ~~Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents~~any Disqualified Equity Interests) (“Refunding Capital Stock”); (ni) ~~Restricted Payments~~ the repurchase, redemption or other acquisition for value of Equity Interests of the Borrower 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 hereunder; (j) payments or distributions to satisfy ~~appraisal or other~~ dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, ~~merger,~~ merger or transfer of ~~assets or acquisition~~ assets; provided that ~~complies with Section 7.02 or Section 7.04~~the aggregate Restricted Payments made under this clause (j) do not exceed $30,000,000; (ok) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous Restricted Payments (i) required to be made pursuant to the ~~Lenders in all respects material to their interests~~ Series C Put Option Agreement so long as ~~those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.~~ no default (pincluding any Default or Event of Default) ~~the Original Transaction and Restricted Payments made to effect the Original Transaction; (q)~~ then-exists or would result from the making of any Restricted Payment; provided that, the aggregate amount of Restricted Payments made pursuant to this subclause (k)(i) shall not exceed the lesser of (x) the Put Option Payment ~~within sixty~~ Amount and (60y) ~~days after~~ the amount required to purchase the applicable Series C Preferred Stock (as defined in the Series C Put Option Agreement) pursuant to the Series C Put Option Agreement as of the relevant date of ~~declaration thereof~~determination, ~~if at~~ (ii) consisting of dividends in respect of the ~~date~~ Series C Preferred Stock (as defined in the Borrower Charter) as and when required pursuant to Subsection 1.1 of Part B of Article Fourth of the Borrower Charter; provided that such ~~declaration~~ Restricted Payments may be made in cash only to the extent (x) no Default or Event of Default shall have occurred and be continuing both immediately prior to the making of any such Restricted Payment ~~would~~ and after giving pro forma effect to any such Restricted Payment and (y) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such Restricted Payment, with Section 7.01 for the most recently ended Test Period, and (iii) Restricted Payments made in respect of any Put Note, to the extent (x) such Put Note ranks junior to the Obligations hereunder and (y) no Default or Event of Default shall have ~~complied with another provision of this Section 7.06; provided that~~ occurred and be continuing both immediately prior to the making of any such Restricted Payment ~~will reduce capacity for~~ and after giving pro forma effect to any such Restricted ~~Payments pursuant to such other provision when so made~~Payment; and (rl) so long as no Event of Default shall have occurred and be continuing or be caused thereby, other Restricted Payments not otherwise permitted by this Section 6.04, in an aggregate amount not exceeding (i) $20,000,000 since the Effective Date plus (ii) the ~~First Amendment Transactions~~ portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (ii); provided that, immediately after giving effect thereto, (x) the Total Net Leverage Ratio shall not exceed 5.25 to 1.00 for the most recently ended Test Period and (y) the Secured Net Leverage Ratio shall not exceed 3.25 to 1.00 for the most recently ended Test Period. Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, the only transfers (including, without limitation, Investments, sales or other dispositions or Restricted ~~Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A~~Payments) ~~to holders of restricted stock or performance stock units as provided~~ by the ~~First Amendment Transaction Agreement~~ Borrower and (Bthe Restricted Subsidiaries permitted to be made in or to Unrestricted Subsidiaries shall be transfers that are permitted by Section 6.07(c) ~~in order to satisfy indemnity~~ and ~~other similar obligations under the First Amendment Transaction Agreement~~Section 6.07(p).

Appears in 2 contracts

Sources: Revolving Credit and Guaranty Agreement (CoreWeave, Inc.), Credit Agreement (CoreWeave, 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) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) [Reserved]; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Default or Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 3.50 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) ~~and 7.08(m)(ii~~or 7.08(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may make Restricted Payments to pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members~~ manager or consultant of ~~management and consultants~~ such Restricted Subsidiary (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of~~ the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $18,750,000 in any calendar year (~~it being understood that any~~ which shall increase to $37,500,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ 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 ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the ~~cash proceeds received by~~ extent contributed to the ~~Borrower or any of~~ Borrower, the ~~Restricted Subsidiaries~~ Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the ~~Borrower (to the extent contributed to the~~ Borrower~~) to any future~~, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the ~~cash proceeds~~ 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 in connection with the Transactions that are foregone in return for the receipt of Equity Interests; less (iv) the amount of any Restricted ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date~~cash proceeds described in clause (i), (ii) and (iii) of this Section 7.06(g); ~~provided~~provided that, ~~further, that (1)~~ the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (yi), (ii) and (ziii) above in any calendar ~~year and (2)~~ year; provided, further, that cancellation of Indebtedness owing to the Borrower or any of its Restricted ~~Subsidiary~~ Subsidiaries from any future, present or former ~~employee~~employees, ~~officer~~directors, ~~director~~officers, ~~member~~ members of management or ~~consultant~~ consultants (or ~~the estates~~their respective Controlled Investment Affiliates or Immediate Family Members), ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ of the ~~foregoing)~~ Borrower, any Restricted Subsidiary, any direct or indirect parent company of the Borrower or any ~~direct or indirect parent thereof or any Subsidiary thereof~~ 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 ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ 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; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to ~~any direct or indirect parent of the Borrower~~a Parent Entity: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate existence or ~~legal existence~~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) for so long as Borrower is classified as a partnership 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 ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivvi) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants of such Persons and~~ Borrower or any ~~payroll, social security or similar taxes in connection therewith~~ Parent Entity to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement;Subsidiaries; and (vii) the proceeds of which shall be used by Borrower to pay ~~cash, in lieu of issuing fractional shares, in connection with the exercise of warrants, options~~ (or to make Restricted Payments to allow Parent Entity thereof to pay) fees and expenses (other ~~securities convertible into~~ than to Affiliates) related to any unsuccessful equity or ~~exchangeable for Equity Interests of such Persons; and~~ debt offering by Borrower (~~viii~~or any Parent Entity thereof) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower that is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are directly attributable to the ~~income~~ operations of the Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted ~~Subsidiaries for such purpose~~Subsidiaries; (hj) payments made or expected to be made by the 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, 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; (k) the Borrower or any Restricted Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) ~~1.5%~~ honor any conversion request by a holder of ~~Consolidated Total Assets determined at the time~~ convertible Indebtedness and make cash payments in lieu of ~~incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to~~ fractional shares in connection with any such ~~additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated~~ conversion and may make payments on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and convertible Indebtedness in accordance with its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOterms; (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 ~~that are made with Excluded Contributions~~ not to exceed up to 6% per annum of the ~~extent Not Otherwise Applied~~net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO ; (m) the ~~distribution, by dividend~~ Borrower may pay any dividends or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment distributions within ~~sixty (60)~~ 60 days after the date of declaration thereof, if at the date of ~~such~~ declaration such ~~Restricted Payment~~ payment would have complied with ~~another provision~~ the provisions of this ~~Section 7.06~~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 an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the ~~making~~ 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 that 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 acquisition of such ~~Restricted Payment will reduce capacity for Restricted Payments pursuant~~ property or assets was financed with Excluded Contributions, in each case, to ~~such other provision when so made~~the extent Not Otherwise Applied; and (q) 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) ~~the First Amendment Transactions and Restricted Payments made~~ to ~~effect the First Amendment Transactions and~~ pay ~~fees and expenses related thereto~~ interest and/or principal (including AHYDO “catch-up payments”) on Indebtedness the proceeds of which have been contributed to the Borrower or any Restricted ~~Payments made~~ Subsidiary in cash as common equity (Aor other equity reasonably acceptable to the Administrative Agent); provided that (i) the principal amount of such Indebtedness shall increase Consolidated Total Debt on a dollar-for-dollar basis, (ii) all interest expense relating to ~~holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement~~ such Indebtedness shall (x) reduce Consolidated Net Income and (By) increase Consolidated Interest Expense, in ~~order to satisfy indemnity~~ each case on a dollar-for-dollar basis, and ~~other similar obligations under the First Amendment Transaction Agreement)~~(iii) such contribution of equity shall be disregarded for all purposes hereunder.

Appears in 2 contracts

Sources: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources Inc.)

Restricted Payments. (i) Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except:~~ if at the date of declaration thereof (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments either before or ~~other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as~~ immediately after giving effect ~~to such Restricted Payment~~thereto and the payment thereof), ~~(i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ a Default or Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be ~~continuing or would result therefrom~~continuing, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person except that at any time ~~after such Person’s disability~~that a Default or Event of Default shall exist and be continuing, ~~retirement~~ (A) Holdings may declare and pay dividends with respect to its equity interests payable solely in additional shares of its common stock, (B) Subsidiaries of Holdings may declare and pay dividends to Holdings, the Borrowers or ~~termination~~ another wholly owned Subsidiary of ~~employment or service~~any Borrower and (C) ~~in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans~~ non-wholly-owned Subsidiaries may declare and ~~advances~~ pay dividends to the ~~Borrower made pursuant to Section 7.02(m) in lieu~~ holders of ~~Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated~~ their equity interests other than a Group Member on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;ratable basis. (ii) ~~the proceeds of which shall be used~~ Declare or make, or agree to pay (or ~~make Restricted Payments to allow~~ make, directly or indirectly, any ~~direct or indirect parent thereof to pay) franchise and similar Taxes, and~~ other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or~~ other than a Restricted ~~Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (~~Payment to ~~the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or~~ a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(iLoan Party), ~~(e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower~~ except that if no Default or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing (either before or ~~would result therefrom, the Borrower~~ immediately after giving effect thereto and the ~~Restricted~~ payment thereof): (A) Holdings and its Subsidiaries may make ~~additional~~ Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed $400,000,000 from and after the ~~greater of~~ Effective Date, provided, that, (i) ~~C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as~~ immediately after giving effect to any such ~~additional unlimited amounts of~~ Restricted Payment, ~~the Total Net Leverage Ratio (calculated on a~~ Pro Forma ~~Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination~~ and Projected Capped Excess Availability is ~~less~~ greater than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.0050% of the ~~Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO~~ Line Cap and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to ~~such~~ this subsection (i) shall not exceed $150,000,000 in any rolling twelve month period; (B) Holdings and its Subsidiaries may make other ~~provision when so made~~Restricted Payments, provided, that, immediately after giving effect thereto (i) Pro Forma and Projected Capped Excess Availability is at least 25% of the Line Cap, other than during the Holiday Season, (ii) during the Holiday Season (A) Pro Forma and Projected Capped Excess Availability is at least 15% of the Line Cap, and (B) Pro Forma and Projected Uncapped Excess Availability is at least 30% of the Borrowing Base, and (iii) the Pro Forma Fixed Charge Ratio shall be at least 1.1 to 1.0; provided, that, for purposes of the calculation of Pro Forma Fixed Charge Ratio (x) Adjusted Consolidated EBITDA and Consolidated Interest Expense shall be computed on a trailing four quarter basis, and scheduled principal payments shall be computed on a four quarter forward basis, and (y) the amount of the Restricted Payment paid in cash being made in connection with the calculation shall be added to Fixed Charges; and (rC) ~~the First Amendment Transactions~~ Holdings and its Subsidiaries may make other Restricted Payments ~~made to effect~~ (1) from the ~~First Amendment Transactions~~ Net Proceeds of any common stock issuances by Holdings after the Effective Date, (2) from the Net Proceeds of any Permitted Dispositions of the type set forth in clauses (f) and ~~pay fees~~ (g) of the definition thereof, and ~~expenses related thereto~~ (~~including Restricted Payments made~~ 3) from any dividends and distributions received (Adirectly or indirectly) on account of equity interests in any Subsidiary of Holdings which is not a Loan Party or on account of equity interests in OSH, and (4) to ~~holders~~ the stockholders of ~~restricted stock or performance stock units as provided by~~ Holdings in the ~~First Amendment Transaction Agreement~~ form of the equity interests of the subsidiaries set forth on Schedule 6.02(d), provided, that in each case, immediately after giving effect thereto and ~~(B) in order to satisfy indemnity~~ the Pro Forma and ~~other similar obligations under~~ Projected Capped Excess Availability is at least 15% of the ~~First Amendment Transaction Agreement)~~Line Cap.

Appears in 2 contracts

Sources: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)

Restricted Payments. ~~Declare or make~~Neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by ‎Section 7.03) of ~~the Borrower~~such Person; (c) Restricted Payments made on or after the Closing Date in connection with the Transactions, including the settlement of claims or actions in connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, purchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 5.00 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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~~ Sections ‎7.02 (other than ~~Section 7.02(e~~Sections ‎7.02(e) and ~~7.02(m~~‎(m)), ~~Section 7.03, Section 7.04, Section 7.05~~ ‎7.04 or ‎7.08 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~Sections ‎7.08(e) and ~~7.08(m)(ii~~‎(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause ~~(f),~~ ‎(g) shall not to exceed ~~the greater of (w) C$~~$35,000,000 ~~and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ in any calendar year (~~it being understood that any~~ which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ 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 ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the extent contributed to the Borrower, the net cash proceeds ~~received by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity ~~Interests, Excluded Contributions~~ Interests or ~~amounts that increased the Available Amount~~Designated Equity Contributions) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~of the Borrower (to the extent contributed to the Borrower)~~ companies, in each case to any future, present or former ~~employee~~employees, ~~officer~~officers, ~~director~~members of management, ~~member of management~~ managers, directors or ~~consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ their respective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family Members) of the ~~Borrower or~~ Borrower, any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) 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 ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date; provided, further, that~~ cash proceeds described in clauses ‎(i) and ‎(ii) of this ‎Section 7.06(g); (1h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, when combined with prepayment of Indebtedness pursuant to ‎Section 7.13(a)(v), (x) the ~~aggregate increase contemplated by clauses~~ greater of (i) $230,000,000 and (i) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and ~~(z) above in any calendar year and (2) cancellation~~ is continuing or would result therefrom, the portion, if any, of ~~Indebtedness owing to~~ the Cumulative Credit on such date that the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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,~~ business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period ~~for~~ in which the Borrower and/or any of its Subsidiaries ~~are members~~ 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 for Tax purposes of which~~ Group”) and whose common parent is a direct or indirect parent of ~~Borrower is~~ Borrower, to the ~~common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of~~ extent such ~~Tax Group to pay the portion of any~~ income ~~Tax of such Tax Group for such taxable period that~~ 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~~ provided, that ~~(A)~~ in each case the amount of such ~~Restricted Payments for~~ payments in respect of any ~~taxable period shall~~ fiscal year does not exceed the amount that ~~amount of such Taxes that~~ the Borrower and/or its Restricted Subsidiaries (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have ~~paid~~ 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/or~~ and its ~~applicable Subsidiaries~~Subsidiaries (including its Unrestricted Subsidiaries to the extent described above), as applicable, ~~been~~ (A) paid such Taxes separately from any such parent company or (B) if the Borrower is treated as a ~~stand-alone~~ 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) for any taxable period (or portion thereof) in which the Borrower is a ~~stand-alone group)~~ partnership or disregarded entity for ~~all~~ U.S. federal income tax purposes, payments to the owner or owners of equity of the Borrower in an aggregate amount 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, with respect to the applicable owner receiving the greatest proportionate allocation of estimated net taxable income attributable to the Borrower in the applicable tax ~~years and~~ period (or portion thereof) to which such payment relates (as a result of the application of Section 704(c) of the Code or otherwise), (A) the aggregate taxable income of the Borrower allocated to such owner (calculated by excluding the tax consequences resulting from any Code Section 743(b) adjustment) in such applicable taxable period (or portion thereof), multiplied by (B) the ~~amount of such Restricted Payments~~ highest combined marginal federal, state and/or local income tax rate applicable to an individual residing in ~~respect of an Unrestricted Subsidiary shall be permitted only to~~ California or New York, New York (whichever is higher for the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (iirelevant period); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.14 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.14; (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings, so long as, with respect to any ~~direct~~ such Restricted Payments made pursuant to sub-clause (iv) or ~~indirect parent~~ sub-clause (vii) below, no Event of ~~the Borrower~~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 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 foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings that includes the Borrower and its 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 as a stand-alone group and (y) the actual tax liability 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; provided that Restricted Payments made under this clause (i) in respect of taxes attributable to the income of Unrestricted Subsidiaries of the Borrower may be made only to the extent that such Unrestricted Subsidiaries have made cash payments for such purpose to the Borrower or its Restricted Subsidiaries; (ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses necessary to maintain its corporate existence; (iv) the proceeds of which will be used to repurchase the Equity Interests of Holdings (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interest) 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 (A) $5,000,000 (or $7,500,000 after a Qualifying IPO) 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 $5,000,000 (or $7,500,000 after a Qualifying IPO) 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~its 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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchaser or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; and (vii) the proceeds of which shall be used by Holdings to ~~pay (~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering ~~permitted~~ by ~~this Agreement (whether~~ any direct or ~~not successful); (v) the proceeds~~ indirect parent of ~~which (A) shall be used to pay customary salary~~Holdings, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in ~~connection therewith to the extent such salaries, bonuses and other benefits are~~ each case directly attributable to the ~~ownership or operation~~ operations of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vif) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments to Holdings 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 ~~proceeds~~ portion, if any, of ~~which will be used~~ the Cumulative Credit on the date of such election that the Borrower elects to ~~make payments due or expected~~ apply to this Section 7.06(f)(2), such election to be ~~due~~ specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to ~~cover social security~~such election and the amount thereof elected to be so applied, ~~Medicare~~provided that (in the case of this Section 7.06(f)(2)) immediately before and immediately after giving effect to any such Restricted Payment, ~~employment insurance~~no Default or Event of Default shall have occurred and be continuing; (g) after a Qualifying IPO, ~~statutory pension plan~~Restricted Payments of up to 6% per annum of the Net Cash Proceeds contributed to the common equity of the Borrower from such Qualifying IPO provided that immediately before and immediately after giving effect to any such Restricted Payment, ~~withholding~~ no Default or Event of Default shall have occurred and ~~other taxes payable and other remittances~~ be continuing; (h) Restricted Payments made on the Closing Date to ~~Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement~~ consummate the Transactions; and (i) repurchases of ~~such Persons or to make any other payment that would~~Equity Interests of Holdings, ~~if made by~~ the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to ~~Borrower or any of its Restricted Subsidiaries for such purpose; (h)~~ fund the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsoptions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (EWT Holdings I Corp.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~or incur any obligation (contingent or otherwise) to do so, except that: (a) Services may make Restricted Payments to the Partnership or any Guarantor and each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrowers, any Subsidiaries that are Guarantors and ~~to the~~ any other ~~Restricted Subsidiaries (and,~~ Person that owns a direct Equity Interest in ~~the case of a Restricted Payment by a non-Wholly Owned~~ such Restricted Subsidiary, ratably according to their respective holdings of the ~~Borrower and any other Restricted Subsidiaries and to each other owner~~ type of Equity ~~Interests~~ Interest in respect of which such Restricted ~~Subsidiary based on their relative ownership interests of the relevant class of Equity Interests)~~Payment is being made; (b) ~~the~~ each Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in ~~the~~ Qualified Equity Interests ~~(other than~~ of such Person and the Partnership may issue Qualified Equity Interests upon the conversion of, or in exchange for, Disqualified Equity Interests~~) of the Borrower~~; (c) each Borrower and each Restricted Subsidiary may make Restricted Payments with the proceeds received from the substantially concurrent issue of new Qualified Equity Interests; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, the Partnership may make Restricted Payments pursuant to and in ~~each case~~ accordance with the cash distribution policy adopted by the General Partner pursuant to the Borrower Partnership Agreement from time to time; (e) the Loan Parties may redeem or convert their Equity Interests or make any payment in connection with any employee benefit plan sponsored by the Loan Parties entered into in the ordinary course of business; (f) the Borrowers and the Restricted Subsidiaries may make Restricted Payments ~~in an amount~~ not ~~to exceed the Available Amount immediately prior to~~ otherwise permitted by this Section 7.06, so long as (i) no Event of Default then exists and is continuing at the time of ~~the making of~~ such Restricted Payment or would result therefrom and (ii) after giving Pro Forma Effect to such Restricted Payment, (A) the Borrowers are in compliance with Section 7.11 and (B) the Borrowers have Liquidity of at least $25,000,000; (dg) ~~to the extent constituting Restricted Payments~~(i) payment in lieu of fractional Equity Interests in connection with any dividend, ~~the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by~~ split or combination thereof or any ~~provision of Section 7.02~~ Permitted Acquisition (or other ~~than Section 7.02(e~~similar Investment) and ~~7.02(m)), Section 7.03, Section 7.04, Section 7.05~~ (~~other than Section 7.05(e)~~ii) ~~or Section 7.08 (other than Section 7.08(i)~~ honor any conversion request by a holder of convertible Indebtedness and ~~7.08(m)(ii));~~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; and (eh) ~~redemptions, repurchases, retirements~~ payments made or ~~other acquisitions~~ expected to be made by either Borrower or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests ~~in the Borrower~~ by any future, present or former employee, director, officer, manager or consultant (or their respective controlled Affiliates or permitted transferees) and any repurchases of ~~the Restricted Subsidiaries~~ Equity Interests 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionstaxes. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Amendment and Restatement Agreement (CrossAmerica Partners LP), Credit Agreement (CrossAmerica 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) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) the Spin-Off Transaction and the payment of all fees and expenses related thereto; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 4.00 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) ~~and 7.08(m)(ii~~or 7.08(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members~~ manager or consultant of ~~management and consultants~~ such Restricted Subsidiary (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of~~ the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $150,000,000 in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to ~~the immediately~~ succeeding ~~three~~ calendar ~~years~~years subject to a maximum of $400,000,000 in any calendar year); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the ~~cash proceeds received by~~ extent contributed to the ~~Borrower or any of~~ Borrower, the ~~Restricted Subsidiaries~~ Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent companies, in each case to members of ~~the Borrower (to the extent contributed to~~ management, managers, directors or consultants of Holdings, the Borrower~~) to any future~~, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less (iii) the amount of any Restricted ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date; provided, further, that~~ cash proceeds described in clause (1i) and (ii) of this Section 7.06(g); (h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, when combined with prepayment of ~~the aggregate increase contemplated by clauses~~ Indebtedness pursuant to Section 7.13(a)(iv), (x) 3.00% of Total Assets, plus (y) so long as no Default has occurred and ~~(z) above in any calendar year~~ is continuing or would result therefrom and ~~(2) cancellation of Indebtedness owing to~~ the Fixed Charge Coverage Ratio on a consolidated basis for the Borrower ~~or any~~ and its Restricted ~~Subsidiary from any future~~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, ~~present or former employee~~determined on a pro forma basis, ~~officer~~the portion, ~~director~~if any, ~~member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ of the ~~foregoing) of~~ Cumulative Credit on such date that the Borrower ~~or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed~~ elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ 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) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds~~ company of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vi) the proceeds of which ~~will~~ shall be used by Holdings 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) 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; (j) payments ~~due~~ made or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the 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, 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; (k) the Borrower or any Restricted Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (ii) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests (i) deemed to occur on the exercise of options~~ any Restricted Payment by the ~~delivery of Equity Interests in satisfaction~~ Borrower or any other direct or indirect parent of the ~~exercise price of such options or~~ Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) ~~in consideration~~ Restricted Payments not to exceed the sum of ~~withholding or similar taxes payable~~ (A) up to 6% per annum of the net proceeds received by ~~any future, present or former officer, employee, director, member of management or consultant~~ (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (jcontributed to) ~~in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom,~~ the Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ from the Qualified IPO and (B) Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ per annum not to exceed ~~the greater of~~ (ix) ~~C$50,000,000 and (ii) 1.5~~3.50% of ~~Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated~~ Market Capitalization, if, on a Pro Forma ~~Basis) plus additional unlimited amounts so long as immediately~~ Basis after giving effect to the payment of any such ~~additional unlimited amounts of~~ Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 5.50 to 1.00 and (~~calculated~~ y) 4.75% of Market Capitalization, so long as, on a Pro Forma ~~Basis) as of the last day of the most recently ended Test Period on or prior~~ Basis after giving effect to the ~~date~~ payment of ~~determination is~~ any such Restricted Payment, the Consolidated Total Net Leverage Ratio shall be less than or equal to ~~5.00:1.00~~5.50 to 1.00; (km) ~~after a Qualifying IPO, the declaration and payment~~ distributions or payments of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOSecuritization Fees; (ln) Restricted Payments that are made with ~~Excluded Contributions~~ the net proceeds of the Timeshare Disposition; provided that for the most recently ended Test Period immediately preceding the date of such Restricted Payment, after giving effect to the ~~extent Not Otherwise Applied~~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; (mo) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock of~~an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to the Borrower or a Restricted Subsidiary ~~by,~~ 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,~~ Subsidiaries the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.and (p) ~~the Original Transaction and~~ Restricted Payments that are made (i) in an amount equal to ~~effect~~ the ~~Original Transaction;~~ amount of Excluded Contributions previously received (qless any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the ~~making~~ Net Proceeds from a Disposition in respect of ~~any Restricted Payment within sixty (60) days~~ property or assets acquired after the ~~date of declaration thereof~~Closing Date, if at the ~~date~~ acquisition of such ~~declaration such Restricted Payment would have complied~~ property or assets was financed with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Excluded Contributions.

Appears in 2 contracts

Sources: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)

Restricted Payments. ~~Declare~~ The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except:~~ except (a) ~~each Restricted Subsidiary may make Restricted Payments to~~ the Borrower may declare and pay dividends with respect to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of its Equity Interests payable solely in additional shares of ~~such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);~~ its common stock, (b) ~~the Borrower and each of the~~ Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower and its Restricted Subsidiaries may make ~~dividend payments~~ Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted Subsidiaries, (d) any Receivables Entity may declare and pay dividends or other distributions ~~payable solely in~~ to the ~~Equity Interests~~ Borrower or any wholly-owned Subsidiary thereof and, (e) the Borrower and its Restricted Subsidiaries may make any other ~~than Disqualified Equity Interests) of the Borrower; (c)~~ Restricted Payment so long as ~~immediately~~ (i) no Default has occurred and is continuing or would arise after giving effect (including giving effect on a pro forma basis) thereto and (ii) the Borrower and the Restricted Subsidiaries are in compliance, on a pro forma basis after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted covenants contained in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of 6.11.Leverage Ratio for the Borrower and its Restricted Subsidiaries ~~or (B) shall~~ on a consolidated basis would not be ~~used~~ greater than 2.50 to ~~make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w)~~ 1.00 and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (hf) the Borrower ~~or any of the Restricted Subsidiaries~~ may declare and pay quarterly cash ~~(or make Restricted Payments~~ dividends to ~~any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend~~shareholders, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate $0.40 per share in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsfiscal year. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)

Restricted Payments. ~~Declare or make~~No Loan Party shall, ~~directly or indirectly~~nor shall it permit any of its Restricted Subsidiaries to, make any Restricted ~~Payment~~Payments, ~~except~~except that: (a) each Restricted Subsidiary of each Borrower (including MoGas HoldCo upon becoming a Restricted Subsidiary as a result of the Second Closing) may make Restricted Payments to ~~the~~ such Borrower ~~and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ or any other wholly-owned Restricted ~~Subsidiaries and to each other owner of Equity Interests~~ Subsidiary of such ~~Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests)~~Borrower; (b) ~~the~~ each Borrower ~~and each of the Restricted Subsidiaries~~ may declare and ~~make dividend payments or other distributions~~ pay dividends with respect to its Equity Interests, payable solely in ~~the Equity Interests (other than Disqualified~~ additional shares or units of their Equity Interests~~) of the Borrower~~; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each ~~case the~~ Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions cashless repurchases of Equity Interests ~~in the Borrower or any of the Restricted Subsidiaries~~ deemed to occur upon the exercise of stock options or warrants ~~or similar rights~~ if such Equity Interests represent a portion of the exercise price of such options or ~~warrants or similar rights~~warrants; (fd) ~~the~~ each Borrower ~~and the Restricted Subsidiaries~~ may ~~pay (~~make redemptions of, or ~~make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of~~ purchase Equity Interests ~~of any direct~~ in, such Borrower from employees, consultants or ~~indirect parent of the Borrower, the amount~~ directors of such ~~Restricted Payment is directly attributable to the Equity Interests of the~~ Borrower ~~owned directly or indirectly by~~ upon such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the Person’s death, disability, retirement or termination of ~~employment~~ employment; provided that at the time any purchase or ~~service~~ redemption is made no Default exists or would result therefrom; (e) each Borrower may make Permitted Tax Distributions; (f) each of the Borrowers and, until the consummation of the Second Closing, MoGas HoldCo may make additional Restricted Payments as long as (i) immediately before and after any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made Restricted Payment pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower no Default or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, ~~the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and~~ (ii) ~~1.5%~~ commencing as of ~~Consolidated Total Assets determined at~~ the ~~time of incurrence of such Indebtedness (calculated~~ date on which the Administrative Agent receives a ~~Pro Forma Basis~~Compliance Certificate pursuant to Section 5.01(c) ~~plus additional unlimited amounts so long as~~ for the fiscal quarter ending June 30, 2021, the Borrowers are in pro forma compliance with the financial covenants set forth in Sections 6.13 and 6.14 immediately after giving effect to ~~any~~ such ~~additional unlimited amounts of~~ Restricted ~~Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis)~~ Payment as of the last day of the most ~~recently ended Test Period on~~ recent fiscal quarter of the Borrowers for which financial statements have been delivered pursuant to Section 5.01(a) or ~~prior~~ (b), (iii) immediately after giving effect to such Restricted Payment, the ~~date~~ aggregate Available Revolving Commitment Amounts shall not be less than fifteen percent (15%) of ~~determination~~ the Aggregate Revolving Commitments then in effect, (iv) after giving pro forma effect to such Restricted Payment, the Distributable Free Cash Flow Amount is ~~less~~ greater than or equal to ~~5.00:1.00;~~ $0; (kv) ~~after~~ a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization Responsible Officer of the Borrower ~~at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions~~ Representative shall have delivered a Free Cash Flow Usage Certificate to the ~~extent Not Otherwise Applied;~~ Administrative Agent not less than two (m2) Business Days (or such shorter time as the ~~distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed~~ Administrative Agent may agree to ~~the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n~~in its sole discretion) ~~Restricted Payments~~ prior to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted ~~Payment will reduce capacity for~~ Payment; and (vi) solely with respect to Restricted Payments on or after the Effective Date and prior to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 5.01(c) for the fiscal quarter ending June 30, 2021, any Restricted Payments made by the Borrowers and MoGas HoldCo during such ~~other provision when so made~~period (1) shall not exceed $8,000,000 in the aggregate and (2) may not be funded with any amounts received from Advances made to a Borrower hereunder; (g) MoGas may make Restricted Payments to MoGas HoldCo in accordance with the terms of the Permitted Intercompany Debt; and (rh) ~~the First Amendment Transactions and~~ Holdings may make Restricted Payments ~~made to effect the First Amendment Transactions and pay fees and expenses related thereto (including~~ at any time from proceeds of Restricted Payments ~~made (A) to holders of restricted stock or performance stock units as provided~~ received by ~~the First Amendment Transaction Agreement and (B)~~ it in ~~order to satisfy indemnity and other similar obligations under the First Amendment Transaction~~ accordance with this Agreement).

Appears in 2 contracts

Sources: Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Credit Agreement (CorEnergy Infrastructure Trust, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a ~~non~~Restricted Subsidiary that is not Wholly-~~Wholly~~ Owned by the Borrower or one of the Borrower’s Wholly-Owned Restricted ~~Subsidiary~~Subsidiaries, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount or amounts applied to incur Contribution Indebtedness), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or Junior Financing Prepayments pursuant to Section 7.14(a) or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 ~~Section~~ Sections 7.02(e), (n), (t) and ~~7.02(m~~(u)), ~~Section 7.03~~7.04 or 7.08(e), ~~Section 7.04, Section 7.05~~ (~~other than Section 7.05(e)~~g) or ~~Section 7.08~~ (~~other than Section 7.08(i) and 7.08(m)(ii)~~p); (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of clause (iv) below, to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ 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 ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state, provincial or ~~any~~ local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which such a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated income tax return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (A) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of such taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (A) its operating ~~costs and~~ expenses ~~of such Persons~~ 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, plus customary salary, bonus, severance and other benefits payable to current or former directors, officers, managers, employees or consultants (or, solely with respect to benefits, any 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; (iiiii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) its franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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 parent companies that occurs after the Closing Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) to repurchase Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering 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 Section 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 from such Qualifying IPO and (y) 5% of the market capitalization of the Borrower and its Restricted Subsidiaries; provided that immediately before and immediately after giving effect to any such Restricted Payment, 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, director, manager or consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options; (j) 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 foregoing Restricted Payments, additional Restricted Payments in an aggregate amount not to exceed, together with the amount of Junior Financing Prepayments pursuant to Section 7.14(a)(iv), $10,000,000; (k) in addition to the foregoing Restricted Payments, additional Restricted Payments, so long 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 and (y) the Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b) does not exceed 4.75:1.00; (l) Restricted Payments to any direct or indirect parent entity to make cash payments in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeentity; (hm) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may ~~pay cash~~ repurchase (or make Restricted Payments to any direct or indirect parent ~~the proceeds of which shall be used~~ entity to enable it to ~~pay cash~~repurchase) ~~in lieu of fractional~~ Equity Interests ~~in connection with any dividend, split or combination thereof, any Permitted Acquisition or any~~ upon the exercise of ~~warrants,~~ options or warrants or other securities convertible into or exchangeable for Equity ~~Interests; (i) redemptions, repurchases, retirements or other acquisitions of~~ Interests if such Equity Interests ~~(i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction~~ represent all or a portion of the exercise price of such options or ~~(ii) in consideration~~ warrants or other securities as part of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents);“cashless” exercise; and (n) ~~Restricted Payments to satisfy appraisal~~ the Borrower or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted ~~Payment~~ Subsidiary may pay any dividend or consummate any redemption within sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration ~~such Restricted Payment~~ or notice, the dividend or redemption notice would have complied with ~~another provision of this Section 7.06; provided that~~ the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)provisions hereof.

Appears in 2 contracts

Sources: First Lien Credit Agreement (TGPX Holdings I LLC), First Lien Credit Agreement (TGPX Holdings I LLC)

Restricted Payments. Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except~~except for: (a) ~~each Restricted Subsidiary may make Restricted Payments to~~ dividends payable by the Borrower ~~and to the other Restricted Subsidiaries (and,~~ solely in ~~the case~~ shares of ~~a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ any ~~other Restricted 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)~~its common stock; (b) Restricted Payments, of the type referred to in clause (a) of such definition, made by any Restricted Subsidiary to Persons that own Capital Stock in such Restricted Subsidiary, on a pro rata basis according to their respective holdings of the type of Capital Stock in respect of which such Restricted Payment is being made with any other shareholders if such Restricted Subsidiary is not wholly owned by the Borrower and ~~each of the~~ other wholly owned Restricted ~~Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower~~Subsidiaries; (c) any Restricted Payment (other than Restricted Investments in Unrestricted Subsidiaries), so long ~~as immediately~~ as, at the time of such Restricted Payment (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment on a Pro Forma Basis (x) the Loan Parties would be in compliance with the financial covenants set forth in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) and (y) the Consolidated Net Leverage Ratio recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) shall be less than 2.50:1.00; (d) any Restricted Payment, so long as, at the time of such Restricted Payment (i) ~~for~~ no Default or Event of Default has occurred and is continuing and (ii) the aggregate amount of all Restricted Payments made pursuant to this ~~Section 7.06(c) in excess of C$55,000,000 which are attributable to~~ clause (bd) shall not to exceed $250,000,000 in the aggregate during the term of this Agreement; and (e) any other Restricted Payment, unless, at the ~~Available Amount, the Fixed Charge Coverage Ratio (calculated~~ time of and after giving effect to such Restricted Payment on a Pro Forma Basis: (x) no Default or Event of Default has occurred and is continuing, (y) after giving effect to such Restricted Payment on a Pro Forma Basis the Consolidated Fixed Charge Coverage Ratio recomputed as of the ~~last day~~ end of the period of the four Fiscal Quarters most recently ended ~~Test Period on~~ for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or ~~prior to the date of determination is~~ (b) shall be greater than ~~or equal to 2.00:1.00~~ 2.00:1.0; and (iiz) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of ~~loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of~~ all Restricted Payments ~~permitted~~ made by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries ~~may make Restricted Payments to any direct or indirect parent~~ after the date of the ~~Borrower~~First Amendment pursuant to clause (c) and (d), is less than the sum, without duplication, of: (i) 50% of Consolidated Net Income for the period (taken as one accounting period) from January 1, 2016 through and including the date of the most recent balance sheet included in the financial statements delivered by the Borrower pursuant to Section 5.1(a) or (b) at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds ~~of which shall be used to pay~~ (or ~~make Restricted Payments~~ the Fair Market Value of property other than cash) received by the Borrower since the date of the First Amendment as a contribution to ~~allow any direct~~ its common equity capital or ~~indirect parent thereof~~ from the issuance or sale of Capital Stock of the Borrower (other than the issuance of Disqualified Stock) or from the issuance or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Borrower, in either case, that have been converted into or exchanged for such Capital Stock of the Borrower (other than Capital Stock or Disqualified Stock or debt securities sold to ~~pay) operating costs and expenses~~ a Subsidiary of ~~such Persons 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~~Borrower), ~~which are reasonable and customary and incurred in the ordinary course of business, attributable~~ plus (iii) to the ~~ownership~~ extent that any Restricted Investment that was made after the date of the First Amendment is (A) sold for cash or ~~operations~~ otherwise cancelled, liquidated or repaid for cash, the cash proceeds received with respect to such Restricted Investment (less the cost of disposition, if any) or (B) made in an entity that subsequently becomes a Restricted Subsidiary, an amount equal to the Fair Market Value of the Restricted Investments owned by the Borrower and its Restricted ~~Subsidiaries;~~Subsidiaries in such entity at the time such entity becomes a Restricted Subsidiary, plus (iiiv) 100% of the aggregate net cash proceeds ~~of which shall be used to pay~~ (or ~~make Restricted Payments to allow any direct or indirect parent thereof to pay~~the Fair Market Value of property other than cash) ~~franchise and similar Taxes, and other fees and expenses, required to maintain its (or any~~ received by the Borrower since the date of ~~such direct or indirect parent’s) corporate or legal existence; (iii) to finance any Investment permitted to be made pursuant to Section 7.02; provided that~~ the First Amendment by means of (A) ~~such Restricted Payment shall be made substantially concurrently with~~ the ~~closing of such Investment and~~ sale (~~B) such Persons shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed~~ other than to the Borrower or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or (2B) ~~the merger, amalgamation, consolidation~~ a distribution or ~~sale of all or substantially all assets~~ dividend from an Unrestricted Subsidiary (other than in each case to the extent such Investment constituted an Investment permitted under Section 7.4), in ~~Section 7.04~~each case to the extent that such amounts were not otherwise included in the Consolidated Net Income for such period, plus (v) in case, after the date of the ~~Person formed in order to consummate such Investment~~ First Amendment, any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary under the terms of this Agreement or ~~acquired pursuant to such Investment~~has been merged, ~~as applicable~~consolidated or amalgamated with or into, ~~into~~ or transfers or conveys assets to, ~~as applicable,~~ or is liquidated into the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith an amount equal to the ~~extent such salaries, bonuses and other benefits are attributable to~~ Fair Market Value of the ~~ownership or operation of~~ Restricted Investments owned by the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of ~~incurrence of such Indebtedness~~ the redesignation, combination or transfer (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as or of the ~~last day of the most recently ended Test Period on~~ assets transferred or ~~prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO~~conveyed, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreementapplicable).

Appears in 2 contracts

Sources: Credit Agreement (Molina Healthcare Inc), Credit Agreement (Molina Healthcare Inc)

Restricted Payments. ~~Declare or make, directly or indirectly,~~ No Loan Party shall make any Restricted ~~Payment, except:~~ Payment to any Person except that: (a) ~~each Restricted~~ any Subsidiary of Borrower may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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); Borrower; (b) ~~the~~ Borrower may make dividends and ~~each of the Restricted Subsidiaries may declare and make dividend payments or other~~ distributions ~~payable solely~~ in the ~~Equity Interests (other than Disqualified Equity Interests)~~ form of Stock to its Stockholders to the ~~Borrower;~~ extent permitted by Section 6.5 hereof and in connection with mergers permitted by Section 6.1(a)(iv); (c) ~~so long as immediately~~ Borrower may make (i) regularly scheduled payments of interest to holders of the Convertible Notes, (ii) payments in cash or Stock upon conversion of any of the Convertible Notes pursuant to Section 4.1 of the Convertible Note Indenture and paragraph 9 of the Convertible Notes; (iii) payments in cash on or after February 11, 2009 upon redemption of the Convertible Notes pursuant to Section 3.8 of the Convertible Note Indenture and paragraph 7 of the Convertible Notes, (iv) payments in cash on or after February 11, 2009 upon redemption of the Convertible Notes by Borrower pursuant to Section 3.1 of the Convertible Note Indenture and paragraph 6 of the Convertible Notes, provided that no Default or Event of Default has occurred and is continuing both before and after giving effect to any such ~~Restricted Payment~~payment, (iv) ~~for all Restricted Payments made~~ payment in cash of the aggregate principal amount of the Convertible Notes upon maturity or upon acceleration, (vi) payment of liquidated damages to the holders of Convertible Notes pursuant to ~~this~~ Section ~~7.06(c~~3 of the Registration Rights Agreement, (vii) payments in ~~excess~~ cash or Stock pursuant to the Convertible Notes Warrant Transaction, (viii) any payments required for registration expenses pursuant to Section 5 of ~~C$55,000,000 which are attributable to clause~~ the Registration Rights Agreement, and (bix) payment of the Change in Control Purchase Price (as defined in Section 3.9(c) of the ~~Available Amount, the Fixed Charge Coverage Ratio~~ Convertible Note Indenture) of any Convertible Notes upon a Change in Control (~~calculated on a Pro Forma Basis~~as defined in Section 3.9(a) as of the ~~last day~~ Convertible Note Indenture) pursuant to Section 3.9 of the ~~most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Convertible Note Indenture and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time paragraph 7 of the ~~making of such Restricted Payment;~~ Convertible Notes; (d) to the ~~extent constituting Restricted Payments~~Loan Parties may make payments of principal of, and interest on, the ~~Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of~~ Intercompany Notes issued in accordance with Section ~~7.02 (other than Section 7.02(e) and 7.02(m~~6.3(j)~~), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));~~ ; (e) ~~redemptions~~Acquirer and G▇▇▇▇▇’▇, ~~repurchases~~as applicable, ~~retirements or other acquisitions~~ may make payments of ~~Equity Interests~~ principal of, and interest on, the Acquirer Intercompany Note and the G▇▇▇▇▇’▇ Intercompany Note issued in accordance with Section 6.3; provided that the ~~Borrower or any~~ outstanding principal balance of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries G▇▇▇▇▇’▇ Intercompany Note may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, not be less than the amount of ~~such Restricted Payment is directly attributable to~~ the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection Prior Lender Obligations paid with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated proceeds thereof on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; ~~provided~~(f) Borrower, ~~further, that (1) the Borrower~~ Acquirer and G▇▇▇▇▇’▇ may ~~elect to apply all or~~ make any ~~portion~~ payments required as a result of the ~~aggregate increase~~ Acquisition as contemplated by ~~clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to~~ the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof Merger Agreement in connection with ~~a repurchase~~ any dissenters’ rights, amounts due relating to any option, warrant or other right of ~~Equity Interests~~ G▇▇▇▇▇’▇ shareholders pursuant to Section 2.4 of the ~~Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this~~ Merger Agreement; ; (g) ~~the Borrower and the Restricted Subsidiaries may make Restricted Payments~~ payments pursuant to any ~~direct or indirect parent~~ transaction permitted by Section 6.4; (h) payments of ~~the Borrower: (i) the proceeds of which shall be used~~ royalties to ~~pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs~~ DSGV and ~~expenses of such Persons incurred~~ G▇▇▇▇▇’▇ Nevada, Inc. 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, attributable to the ownership or operations consistent with past practice arising out of the ~~Borrower~~ use of Trademarks owned by DSGV and ~~its Restricted 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) franchise~~ G▇▇▇▇▇’▇ Nevada, Inc; and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) ~~redemptions~~any transaction otherwise permitted by Sections 6.1, ~~repurchases~~6.2, ~~retirements~~ or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on 6.8 which constitutes a ~~Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of~~ Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)

Restricted Payments. Declare or ~~make, directly or indirectly,~~ make any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments with respect to ~~the Borrower and to the other Restricted Subsidiaries (and~~any class of its Equity Interests; provided, that in the case of a any Restricted Payment made by any Restricted Subsidiary that is not a ~~non~~Wholly-~~Wholly~~ Owned ~~Restricted~~ Subsidiary, the Borrower and/or any Restricted Subsidiary receives at least its pro rata share of such Restricted Payment relative to the ~~Borrower and any other Restricted Subsidiaries and to each other owner~~ percentage of such class of Equity Interests of in such Restricted Subsidiary ~~based on their relative ownership interests of~~ that is not a Wholly-Owned Subsidiary owned by the ~~relevant class of Equity Interests)~~Borrower and/or its other Restricted Subsidiaries; (b) the Borrower ~~and each of the Restricted Subsidiaries~~ may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) the Borrower and any Restricted Subsidiary may make additional Restricted Payments so long as (1) no Event of Default under Section 8.01(a) or (f) exists and (2) immediately after giving effect to such Restricted Payment, ~~(i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ the ~~Available Amount, the Fixed Charge Coverage~~ Total Leverage Ratio (calculated on a Pro Forma ~~Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination~~ Basis is ~~greater~~ less than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment2.20:1.00; (d) to the extent constituting Restricted Payments, the Borrower and ~~the~~ any Restricted ~~Subsidiaries~~ Subsidiary may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of~~ Section ~~7.02~~ 6.19 (other than Section ~~7.02(e) and 7.02(m~~6.19(i)), Section ~~7.03, Section 7.04,~~ 7.04 or Section 7.05 (other than Section 7.05(e)~~) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)~~); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~in the Borrower or any of the Restricted 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 ~~warrants or similar rights~~warrants; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary ~~from any future~~may make Restricted Payments, ~~present or former employee, officer, director, member~~ the proceeds of ~~management or consultant (or~~ which are applied to effect the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ consummation of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this AgreementTransactions; (g) the Borrower and any Restricted Subsidiary may make Restricted Payments in an aggregate amount not to exceed (i) the Available Amount and (ii) the Available Excluded Contribution Amount; (h) the Borrower and any Restricted ~~Subsidiaries~~ Subsidiary may repurchase (or make a Restricted Payment to permit any Parent Company to repurchase) its or the Borrower’s (or such Parent Company’s) common stock from current and former directors, officers, members of management, employees and consultants in an aggregate purchase amount of up to the greater of (x) $30,000,000 and (y) 22.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period 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) to succeeding Fiscal Years); (i) any Restricted Payment in connection with (or to allow the Parent to make any payment in connection with) (A) any Permitted Bond Hedge Transaction and/or (B) the settlement of any Permitted Warrant Transaction by (1) delivery of shares of the Parent’s common equity upon settlement thereof or (2) by (x) set-off against the related Permitted Bond Hedge Transaction or (y) payment of an early termination amount in common equity upon any early termination thereof, in each case, shall be permitted; (j) the Borrower and any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount not to exceed the greater of (x) $40,000,000 and (y) 30.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period; provided, that no Event of Default under Section 8.01(a) or (f) exists; (k) the Borrower and any Restricted Subsidiary may make Restricted Payments to any ~~direct or indirect parent of the Borrower~~Parent Company: (i) ~~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 ~~of such Persons incurred~~ in the ordinary course of business and other corporate ~~overhead~~ overhead, franchise and similar costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), ~~which are reasonable and customary and incurred~~ including any indemnification claims made by directors or officers of such parent, in ~~the ordinary course of business,~~ each case attributable to the ownership or operations of the Borrower and ~~its~~ the Restricted ~~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) franchise~~ Subsidiaries and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses ~~related to any~~ of debt equity or ~~debt offering permitted by this Agreement~~ equity offerings (whether or not successful);; ▇▇▇▇:\98106221\28\78831.0005 (vii) ~~the proceeds of which~~ to pay (A) its franchise taxes and other fees, taxes and expenses required to maintain its corporate existence and (B) Public Company Costs; and/or (iii) which shall be used to pay customary salary, bonus, severance and other benefits payable toto officers and employees of any Parent Company, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to including the ~~extent such salaries, bonuses and other benefits are attributable to the ownership or operation of~~ Parent; (l) the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted ~~Subsidiary, be permitted under this Agreement; (vii)~~ Subsidiary may make Restricted Payments in cash to Holdings the proceeds of which shall be used to ~~pay cash,~~ make (or to enable any Parent Company to make) cash payments in lieu of issuing fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of ~~such Persons; and~~Parent (or any Parent Company), Holdings or any of its Subsidiaries; (~~viii~~m) the Borrower and any Restricted Subsidiary may make Restricted Payments to Holdings (or any Parent Company) to finance any Investment permitted to be made pursuant to Section 7.02 as if such Investment were made by the Borrower or any Restricted Subsidiary; provided, that (i) such Restricted Payments shall be made substantially concurrently with the closing of such Investment and (ii) Holdings (or such Parent Company) shall, promptly following the closing thereof, cause (A) all property acquired (whether assets or Equity Interests) to be contributed as equity to the Borrower or a Restricted Subsidiary or (B) the merger, consolidation or amalgamation (to the extent permitted hereunder) of the Person formed or acquired into the Borrower or a Restricted Subsidiary in order to consummate such Investment; (n) [reserved]; (i) for any taxable period (or portion thereof) for which the Borrower ~~and/or~~ is disregarded as separate from Holdings for U.S. federal income tax purposes and Holdings is treated as a partnership, or disregarded as separate from a partnership, for U.S. federal income tax purposes, the Borrower may make Restricted Payments to Holdings, and Holdings may make Restricted Payments to its direct or indirect owners (including Parent), in an amount not to exceed the Tax Distribution Amount; (i) for any ~~of its Subsidiaries are members~~ taxable period (or portion thereof) for which the Borrower is a member, or disregarded as separate from a member, of a consolidated, combined or similar income ~~Tax~~ tax group ~~for Tax purposes~~ of which a direct or indirect parent of the Borrower (including Parent) is the common ~~parent (a “Tax Group”)~~parent, or the Borrower’s income is otherwise required to be reported on the tax return of such direct or indirect parent, the ~~proceeds of which are necessary~~ Borrower may make Restricted Payments through its direct and indirect owners (including Holdings) in an amount not to ~~permit the common parent of such Tax Group to pay~~ exceed the portion of any ~~income Tax~~ U.S. federal, state or local taxes of such ~~Tax Group~~ group (or such direct or indirect parent) for such taxable period (or portion thereof) that are attributable to the taxable income of the Borrower ~~and/or~~ and its ~~Subsidiaries~~subsidiaries; ~~provided~~ provided, that (A) ~~the amount of such Restricted Payments for any taxable period~~ distributions pursuant to this clause (ii) shall not exceed the tax liability that ~~amount of such Taxes that~~ the Borrower ~~and/or~~ and its ~~Subsidiaries, as applicable,~~ subsidiaries would have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been~~ incurred if such entities were a stand-alone taxpayer (or a stand-alone tax group~~) for all applicable tax years~~ ; and (B) ~~the amount of such Restricted Payments~~ distributions under this clause (ii) in respect of an any taxes attributable to the income of any Unrestricted ~~Subsidiary shall~~ Subsidiaries of the Borrower may be ~~permitted~~ made only to the extent that ~~cash distributions were made by~~ (x) such Unrestricted ~~Subsidiary~~ Subsidiaries have made cash payments for such purpose to the Borrower or ~~any of~~ its Restricted Subsidiaries ~~for such purpose;~~ or (hy) the Borrower or will be deemed to have made an Investment in such Unrestricted Subsidiaries in an amount equal to the taxes attributable to the income of such Unrestricted Subsidiaries; and (p) the Borrower and any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may ~~pay cash (or~~ make Restricted Payments to any ~~direct or indirect parent the proceeds of which shall be used to enable it~~ Parent Company to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) ~~redemptions, repurchases, retirements~~ interests and/or fees on Indebtedness issued or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments incurred thereby in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed in any Fiscal Year the greater of (ix) ~~C$50,000,000~~ $10,000,000 and (iiy) ~~1.5~~10.0% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) EBITDA as of the last day of the most recently ended Test Period ~~on or prior to~~ (with the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate unused amount in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. Fiscal Year under this clause (p) permitted to increase the ~~Original Transaction and Restricted Payments made to effect the Original Transaction;~~ amount permitted under this clause (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (Ap) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreementsucceeding Fiscal Years).

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)

Restricted Payments. ~~Declare~~ No Company shall declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except~~other than: (a) ~~each Restricted Subsidiary may make~~ Restricted Payments by any Subsidiary of Borrowers to ~~the Borrower and~~ Borrowers or to ~~the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ any other ~~Restricted Subsidiaries and to each other owner~~ Wholly-Owned Domestic Subsidiary of ~~Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests)~~Borrowers; (b) the ~~Borrower~~ declaration and ~~each~~ payment of ~~the Restricted Subsidiaries may declare and make dividend payments or other distributions~~ Borrowers of dividends with respect to its Equity Interests payable solely in ~~the Equity Interests (other than Disqualified~~ additional Qualified Equity Interests~~) of the Borrower~~; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ Restricted Payments ~~made~~ payable in Equity Interests of Borrowers pursuant to ~~this Section 7.06(c)~~ and in ~~excess~~ accordance with stock option or restricted stock plans or other benefit plans for management or employees of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower Borrowers and the ~~Restricted~~ Subsidiaries ~~may make Restricted Payments~~ in ~~an amount not to exceed~~ the ~~Available Amount immediately prior to the time~~ Ordinary Course of ~~the making of such Restricted Payment~~Business; (d) payment of reasonable compensation to officers, directors, and employees for actual services rendered to the ~~extent constituting Restricted Payments~~Companies and for the reimbursement of out-of-pocket expenses actually incurred by such officers, directors, and employees in the ~~Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision~~ Ordinary Course of ~~Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~Business; (e) ~~redemptions~~so long as no Default or Event of Default exists or would be caused thereby, ~~repurchases~~(i) Restricted Payments in an aggregate amount, ~~retirements or other acquisitions~~ when combined with any prepayments of ~~Equity Interests~~ Subordinated Debt made pursuant to Section 6.9(c)(i), not to exceed in any Fiscal Year the ~~Borrower or any~~ greater of (x) $75,000,000 and (y) 30.0% of Applicable EBITDA, and (ii) additional Restricted Payments, so long as, both immediately before and after giving effect thereto, the Consolidated Net Leverage Ratio is not greater than 2.00 to 1.00, calculated on a pro forma basis as of the ~~Restricted Subsidiaries deemed to occur upon exercise of stock options or warrants or similar rights if such Equity Interests represent a portion~~ end of the ~~exercise price~~ most recent Fiscal Quarter for which financial statements have been delivered (or are required to be delivered) to the Lenders pursuant to Section 5.1(a) or 5.1(b); provided that, any Restricted Payment that is permitted pursuant to this clause (e)(ii) on the date of declaration or the giving of notice of such ~~options or warrants or similar rights~~Restricted Payment, shall be permitted if made within 60 days after the date of declaration thereof; (f) ~~the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay,~~ so long as no Default or Event of Default exists or would be caused thereby, Borrowers may, in ~~the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower~~good faith, ~~the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent)~~ pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower (or such direct or indirect parent thereof)~~ it held by any future, present or former ~~officers~~employee, ~~directors~~director, ~~employees~~manager, ~~members of management and consultants~~ officer or consultant (or ~~their respective estates~~any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (~~legatees or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner distributees of any of the foregoing) of ~~the Borrower~~ Borrowers or any of ~~its~~ their Subsidiaries or pursuant to any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, ~~officer~~management, ~~director, member of management~~ director or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any manager equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, ~~withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan~~ employee, management, director or manager stock option plan or any other ~~management~~ employee, management, director or ~~employee~~ manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of ~~such Persons or to make any other payment that would, if made by the Borrower~~ Borrowers or any ~~Restricted~~ Subsidiary; provided that, ~~be permitted under~~ the aggregate cash consideration paid for all such payments during the term of this ~~Agreement~~Agreement shall not exceed $25,000,000; (~~vii~~g) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent ~~that cash distributions were made~~ constituting Restricted Payments, Borrowers and their Subsidiaries may enter into and consummate transactions permitted by ~~such Unrestricted Subsidiary to Borrower~~ any provision of Sections 6.3 or ~~any of its Restricted Subsidiaries for such purpose~~6.4; (h) repurchases of Equity Interests in any Borrower or any Subsidiary of Borrowers owned by a director, officer or employee of any Borrower or any Subsidiary of 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; (i) any Borrower or any of the ~~Restricted~~ Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii)Acquisition; (j) ~~in addition to the foregoing Restricted Payments and~~ so long as no ~~Event~~ Change of ~~Default~~ Control shall ~~have occurred and be continuing or would result therefrom~~occur, ~~the Borrower and the Restricted Subsidiaries~~ any Company may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions redeem in whole or in part of 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 ~~such new Equity Interests contain~~ 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 ~~in all respects material to their interests~~ as those contained in the Equity Interests redeemed thereby~~; provided, further, that such amounts are not included in Excluded Contributions.~~; (pk) ~~the Original Transaction and~~ so long as no Default or Event of Default exists or would be caused thereby, Restricted Payments made ~~to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days~~ after the ~~date~~ Spin Date to redeem Equity Interests of ~~declaration thereof, if at~~ WKKC not to exceed in the ~~date~~ aggregate an amount equal to the aggregate amount of ~~such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that~~ Net Cash Proceeds from any Equity Issuance received by WKKC after the ~~making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made~~Spin Date ; and (rl) ~~the First Amendment Transactions and~~ Restricted Payments ~~made to effect the First Amendment Transactions and pay fees and expenses related thereto~~ (including ~~Restricted Payments made (A~~the Kellogg Cash Transfer) to ~~holders of restricted stock or performance stock units as provided by~~ the ~~First Amendment Transaction Agreement and (B) in order~~ extent required to ~~satisfy indemnity and other similar obligations under~~ consummate the ~~First Amendment Transaction Agreement)~~Spin-Off.

Appears in 2 contracts

Sources: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)

Restricted Payments. ~~Declare~~ Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) [Reserved]; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Default or Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 3.50 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) ~~and 7.08(m)(ii~~or 7.08(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may make Restricted Payments to pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members~~ manager or consultant of ~~management and consultants~~ such Restricted Subsidiary (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of~~ the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $19,500,000 in any calendar year (~~it being understood that any~~ which shall increase to $37,500,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ 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 ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the ~~cash proceeds received by~~ extent contributed to the ~~Borrower or any of~~ Borrower, the ~~Restricted Subsidiaries~~ Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the ~~Borrower (to the extent contributed to the~~ Borrower~~) to any future~~, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the ~~cash proceeds~~ 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 in connection with the Transactions that are foregone in return for the receipt of Equity Interests; less (iv) the amount of any Restricted ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date~~cash proceeds described in clause (i), (ii) and (iii) of this Section 7.06(g); ~~provided~~provided that, ~~further, that (1)~~ the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (yi), (ii) and (ziii) above in any calendar ~~year and (2)~~ year; provided, further, that cancellation of Indebtedness owing to the Borrower or any of its Restricted ~~Subsidiary~~ Subsidiaries from any future, present or former ~~employee~~employees, ~~officer~~directors, ~~director~~officers, ~~member~~ members of management or ~~consultant~~ consultants (or ~~the estates~~their respective Controlled Investment Affiliates or Immediate Family Members), ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ of the ~~foregoing)~~ Borrower, any Restricted Subsidiary, any direct or indirect parent company of the Borrower or any ~~direct or indirect parent thereof or any Subsidiary thereof~~ 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 ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ 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; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to ~~any direct or indirect parent of the Borrower~~a Parent Entity: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate existence or ~~legal existence~~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) for so long as Borrower is classified as a partnership 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 ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivvi) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants of such Persons and~~ Borrower or any ~~payroll, social security or similar taxes in connection therewith~~ Parent Entity to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement;Subsidiaries; and (vii) the proceeds of which shall be used by Borrower to pay ~~cash, in lieu of issuing fractional shares, in connection with the exercise of warrants, options~~ (or to make Restricted Payments to allow Parent Entity thereof to pay) fees and expenses (other ~~securities convertible into~~ than to Affiliates) related to any unsuccessful equity or ~~exchangeable for Equity Interests of such Persons; and~~ debt offering by Borrower (~~viii~~or any Parent Entity thereof) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower that is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are directly attributable to the ~~income~~ operations of the Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted ~~Subsidiaries for such purpose~~Subsidiaries; (hj) payments made or expected to be made by the 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, 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; (k) the Borrower or any Restricted Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) ~~1.5%~~ honor any conversion request by a holder of ~~Consolidated Total Assets determined at the time~~ convertible Indebtedness and make cash payments in lieu of ~~incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to~~ fractional shares in connection with any such ~~additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated~~ conversion and may make payments on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and convertible Indebtedness in accordance with its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOterms; (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 ~~that are made with Excluded Contributions~~ not to exceed up to 6% per annum of the ~~extent Not Otherwise Applied~~net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO; (m) the ~~distribution, by dividend~~ Borrower may pay any dividends or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment distributions within ~~sixty (60)~~ 60 days after the date of declaration thereof, if at the date of ~~such~~ declaration such ~~Restricted Payment~~ payment would have complied with ~~another provision~~ the provisions of this ~~Section 7.06~~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 an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the ~~making~~ 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 that 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 acquisition of such ~~Restricted Payment will reduce capacity for Restricted Payments pursuant~~ property or assets was financed with Excluded Contributions, in each case, to ~~such other provision when so made~~the extent Not Otherwise Applied; and (q) 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) ~~the First Amendment Transactions and Restricted Payments made~~ to ~~effect the First Amendment Transactions and~~ pay ~~fees and expenses related thereto~~ interest and/or principal (including AHYDO “catch-up payments”) on Indebtedness the proceeds of which have been contributed to the Borrower or any Restricted ~~Payments made~~ Subsidiary in cash as common equity (Aor other equity reasonably acceptable to the Administrative Agent); provided that (i) the principal amount of such Indebtedness shall increase Consolidated Total Debt on a dollar-for-dollar basis, (ii) all interest expense relating to ~~holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement~~ such Indebtedness shall (x) reduce Consolidated Net Income and (By) increase Consolidated Interest Expense, in ~~order to satisfy indemnity~~ each case on a dollar-for-dollar basis, and ~~other similar obligations under the First Amendment Transaction Agreement)~~(iii) such contribution of equity shall be disregarded for all purposes hereunder.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Parent Borrower, and ~~to the~~ other Restricted Subsidiaries of the Parent Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Parent Borrower and any other Restricted ~~Subsidiaries~~ 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 Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) ~~so long as~~ Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in respect of working capital adjustments or purchase price adjustments pursuant to the Merger Agreement, (iii) in order to satisfy indemnity and other similar obligations under the Merger Agreement and (iv) to holders of Equity Interests of Parent Borrower (immediately ~~after~~ prior to giving effect to ~~such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c~~the Transactions) in ~~excess~~ connection with, or as a result of, their exercise of ~~C$55,000,000 which are attributable to clause~~ appraisal rights and the settlement of any claims or actions (bwhether actual, contingent or potential) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefromwith respect thereto, in each ~~case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior~~ case, with respect to the ~~time of the making of such Restricted Payment~~Transactions; (d) to the extent constituting Restricted Payments, the Parent 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(f) ~~and 7.08(m)(ii~~or 7.08(l)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Parent Borrower or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Parent Borrower 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 ~~warrants or similar rights~~warrants; (f) the Parent Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ such Restricted Subsidiary (or of the Parent Borrower or any other such direct or indirect parent thereof) held by any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Parent 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 ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or the Parent Borrower or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ the Parent Borrower or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $15,000,000 in any calendar year (~~it being understood that any~~ which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $30,000,000 in any calendar ~~years~~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~~ exceed: (yA) amounts used to increase the ~~cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests~~ Cumulative Credit pursuant to clauses (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount~~b) and (c) of the ~~Borrower or any direct or indirect parent~~ definition of ~~the Borrower~~ “Cumulative Credit”; (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (zB) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Parent Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; ~~provided, further,~~ and provided further that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Parent Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant (or~~ of the ~~estates~~Parent Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ any of the ~~foregoing) of the Borrower or any~~ Parent Borrower’s direct or indirect parent ~~thereof~~ companies or any ~~Subsidiary thereof~~ of the Parent Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the ~~Borrower or any~~ Parent Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) the Parent 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) $100,000,000, plus (y) if (A) the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 6.00 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 ~~Subsidiaries~~ Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom; (h) the Parent Borrower may make Restricted Payments to any direct or indirect parent of the Parent Borrower: (i) ~~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 ~~of such Persons~~ 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,~~ business and attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries, 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 Parent Borrower and its Restricted 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) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (iii) for any taxable period in which the Parent 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 Parent 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 Parent 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 Parent 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 Parent Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; (iv) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Parent Borrower or its Restricted Subsidiaries in order to consummate such ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)6.11; (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under ~~Section 7.08(c)(i),~~ Sections 7.08 (e), (~~g), (h), (j~~i), (k~~), (l), (m), (n), (o), (p), (r), (t), (w~~) and (yp) (but only to the extent such payments have not been and are not expected to be made by the Parent Borrower or a Restricted Subsidiary);; and (vi) the proceeds of which ~~will~~ shall be used by Holdings 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 Parent Borrower and its Restricted Subsidiaries; (i) payments ~~due~~ made or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by Holdings, the Parent Borrower or any of the Restricted ~~Subsidiary~~Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, ~~be permitted under this Agreement;~~ present or former employee, director, manager or consultant (~~vii~~or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) ~~the proceeds~~ and any repurchases of ~~which shall be used to pay cash,~~ Equity Interests in ~~lieu~~ consideration of ~~issuing fractional shares,~~ such payments including deemed repurchases in connection with the exercise of ~~warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and~~stock options; (~~viii~~j) ~~for~~ after a Qualified IPO, (i) any ~~taxable period for which~~ Restricted Payment by the Parent Borrower ~~and/or~~ or any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ other direct or indirect parent of the Parent Borrower ~~is the common parent (~~to pay listing fees and other costs and expenses attributable to being a ~~“Tax Group”), the proceeds of~~ publicly traded company which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years reasonable and customary and (Bii) ~~the amount of such~~ additional Restricted Payments in ~~respect of~~ an ~~Unrestricted Subsidiary shall be permitted only~~ aggregate amount per annum not to exceed an amount equal to 6% the ~~extent that cash distributions were made~~ net proceeds received by ~~such Unrestricted Subsidiary to~~ (or contributed to) the Parent Borrower ~~or any of~~ and its Restricted Subsidiaries ~~for~~ from such ~~purpose~~Qualified IPO; (hk) Holdings, the Parent Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO;Acquisition; and (l) Restricted Payments ~~that are made with Excluded Contributions to~~ in the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part amount of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ~~Contributions~~Contribution. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Credit Agreement (Change Healthcare Holdings, Inc.), Credit Agreement (TC3 Health, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section ‎7.14 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment‎7.06(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 Section 7.02(e) and 7.02(m))~~‎7.02, ~~Section 7.03~~‎7.04, ~~Section 7.04, Section 7.05 (other than Section 7.05(e))~~ ‎7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~‎7.14; (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings, so long as, with respect to any ~~direct~~ such Restricted Payments made pursuant to sub-clause ‎(iv) or ~~indirect parent~~ sub-clause ‎(vii) below, no Event of ~~the Borrower~~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 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 foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings that includes the Borrower and its 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 as a stand-alone group and (y) the actual tax liability 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; provided that Restricted Payments made under this clause ‎(i) in respect of taxes attributable to the income of Unrestricted Subsidiaries of the Borrower may be made only to the extent that such Unrestricted Subsidiaries have made cash payments for such purpose to the Borrower or its Restricted Subsidiaries; (ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses necessary to maintain its corporate existence; (iv) the proceeds of which will be used to repurchase the Equity Interests of Holdings (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interest) 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 (A) $5,000,000 (or $7,500,000 after a Qualifying IPO) 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 $5,000,000 (or $7,500,000 after a Qualifying IPO) 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~its 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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “Permitted Acquisition” permitted to be made pursuant to Section ~~7.02~~‎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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section ~~7.04~~‎7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such ~~Investment~~ purchaser or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; and (vii) the proceeds of which shall be used by Holdings to ~~pay (~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering ~~permitted~~ by ~~this Agreement (whether~~ any direct or ~~not successful); (v) the proceeds~~ indirect parent of ~~which (A) shall be used to pay customary salary~~Holdings, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in ~~connection therewith to the extent such salaries, bonuses and other benefits are~~ each case directly attributable to the ~~ownership or operation~~ operations of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vif) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments to Holdings 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 ~~proceeds~~ portion, if any, of ~~which will be used~~ the Cumulative Credit on the date of such election that the Borrower elects to ~~make payments due or expected~~ apply to this Section ‎7.06(f)(2), such election to be ~~due~~ specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to ~~cover social security~~such election and the amount thereof elected to be so applied, ~~Medicare~~provided that (in the case of this Section ‎7.06(f)(2)) immediately before and immediately after giving effect to any such Restricted Payment, ~~employment insurance~~no Default or Event of Default shall have occurred and be continuing; (g) after a Qualifying IPO, ~~statutory pension plan~~Restricted Payments of up to 6% per annum of the Net Cash Proceeds contributed to the common equity of the Borrower from such Qualifying IPO provided that immediately before and immediately after giving effect to any such Restricted Payment, ~~withholding~~ no Default or Event of Default shall have occurred and ~~other taxes payable and other remittances~~ be continuing; (h) Restricted Payments made on the Closing Date to ~~Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement~~ consummate the Transactions; and (i) repurchases of ~~such Persons or to make any other payment that would~~Equity Interests of Holdings, ~~if made by~~ the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to ~~Borrower or any of its Restricted Subsidiaries for such purpose; (h)~~ fund the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsoptions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (Evoqua Water Technologies Corp.)

Restricted Payments. ~~Declare or make~~Neither the Borrowers nor any Restricted Subsidiary shall at any time, directly or indirectly, declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Company, any of the Company’s Subsidiaries that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the ~~other~~ type of Equity Interest in respect of which such Restricted ~~Subsidiaries~~ Payment is being made (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the ~~Borrower~~ Borrowers and ~~any other~~ their Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests and to the extent required under the Organizational Documents of any non-wholly owned Restricted Subsidiary, based on the ~~relevant class of Equity Interests~~formulation required in such Organizational Documents); (b) the ~~Borrower~~ Company and each ~~of the~~ Restricted ~~Subsidiaries~~ 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)~~ of ~~the Borrower~~such Person; (c) ~~so long as immediately~~ the Company may pay any dividend within 60 days after ~~giving effect~~ the date of the declaration thereof if at the date of such declaration or notice, the payment of such dividend would have complied with the provisions of this Section 8.07; (d) a Restricted Subsidiary may issue Equity Interests to ~~such~~ the extent constituting an Asset Sale permitted by Section 8.01 or Investment permitted by Section 8.06 (other than Section 8.06(o)); (e) a Restricted ~~Payment~~Subsidiary may issue Equity Interests in additional, newly formed Restricted Subsidiaries; (f) the Company and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 5.0% of Borrower Group EBITDA for ~~all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ the ~~Available Amount, the Fixed Charge Coverage Ratio~~ most recently ended Test Period (calculated on a Pro Forma Basis) as at the time of declaration or notice of such Restricted Payment; (g) the ~~last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company and ~~(ii) for all~~ its Restricted Subsidiaries may make Restricted Payments ~~made pursuant~~ from and after the Closing Date in an aggregate amount not to exceed the Available Amount at the time of declaration or notice of such Restricted Payment that the Company elects to apply to this Section ~~7.06(c~~8.07(g), such election to be specified in a written notice (which may be the Compliance Certificate) of a Responsible Officer calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no ~~Specified~~ Event of Default shall have occurred and be continuing or would result therefrom; (h) the Company and its Restricted Subsidiaries may make additional Restricted Payments; provided that at the time of declaration or notice of such Restricted Payments, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Rent-Adjusted Total Net Leverage Ratio shall not exceed 5.00 to 1.00 calculated on a Pro Forma Basis as of the end of the most recently ended Test Period; (i) the Borrowers may make Restricted Payments on the Closing Date pursuant to or in ~~each case~~ connection with the ~~Borrower~~ Transactions; (j) the Company and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in connection with the payment of amounts necessary to repurchase Indebtedness or Equity Interests of the Borrowers or any Subsidiary to the extent required by any Gaming Authority having jurisdiction over the Borrowers or any Subsidiary in order to avoid the License Revocation, suspension, or denial of a Gaming License by that Gaming Authority; provided that after giving effect to any such Restricted Payments, at the time of declaration or notice thereof, the Company and its Restricted Subsidiaries are in compliance with Section 8.12 determined on a Pro Forma Basis as of the end of the most recently ended Test Period; provided, further, that, in the case of any such repurchase of Equity Interests of the Borrowers or any Subsidiary, if such efforts do not jeopardize any Gaming License, the Borrowers or any such Subsidiary will have previously attempted to find a suitable purchaser for such Equity Interests and no suitable purchaser acceptable to the applicable Gaming Authority was willing to purchase such Equity Interests on terms acceptable to the holder thereof within a time period acceptable to such Gaming Authority; (k) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (i) the principal amount of such Convertible Debt plus (ii) any payments received by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction; (l) any payments in connection with (i) a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (A) by delivery of shares of Company’s common stock upon settlement thereof or (B) by (1) set-off against the related Permitted Bond Hedge Transaction or (2) payment of an early termination amount thereof in common stock upon any early termination thereof; (m) the Company and its Restricted Subsidiaries may make Restricted Payments in connection with any prepayment, purchase or redemption of minority interests in MGM National Harbor, LLC, MGM Springfield Blue Tarp, Detroit and any other Designated Restricted Entity in an aggregate amount not to exceed ~~the Available Amount immediately prior to~~ $50,000,000 at the time of ~~the making of such Restricted Payment~~declaration or notice thereof; (dn) 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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions non-cash repurchases of Equity Interests ~~in the Borrower or any of the Restricted Subsidiaries~~ deemed to occur upon exercise of stock options or warrants or ~~similar rights~~ the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of such options or ~~warrants or similar rights;~~warrants; and (fo) the ~~Borrower~~ Company and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to in connection with any ~~direct~~ tender offer, redemption or ~~indirect parent~~ other purchase of Equity Interests of the ~~Borrower: (i) the proceeds~~ Company in an aggregate amount not to exceed $1,000,000,000. For purposes of ~~which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred~~ determining compliance with this Section 8.07, in the ~~ordinary course~~ event that the making 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, attributable to the ownership or operations of the Borrower and its~~ declaration thereof) any Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its Payment (or any portion thereof), other than a Restricted Payment made pursuant to Section 8.07(g), meets the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (o) above, the Company may, in its sole discretion, divide, classify or reclassify such ~~direct~~ Restricted Payment (or ~~indirect parent’s~~any portion thereof) ~~corporate~~ at the time such Restricted Payment (or ~~legal existence;~~ any portion thereof) is made (~~iii~~or declared) ~~to finance~~ under any ~~Investment~~ clause under which it would then be permitted to be made ~~pursuant to Section 7.02; provided that~~ (Aor declared) at such time, and at any future time may divide, classify or reclassify such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or ~~make Restricted Payments to allow~~ any ~~direct or indirect parent thereof to pay~~portion thereof) ~~fees and expenses related to~~ under any ~~equity or debt offering~~ clause under which it would be permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made ~~by the Borrower~~ (or ~~a Restricted Subsidiary); (vi~~declared) ~~the proceeds of which~~ at such later time, and in each case will only be ~~used~~ required to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) include the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making type of such Restricted Payment ~~will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r)~~ in one or more of the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)above clauses.

Appears in 2 contracts

Sources: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)

Restricted Payments. ~~Declare~~ (a) The Company and its Restricted Subsidiaries will not declare or ~~make, directly or indirectly,~~ make any Restricted Payment, ~~except:~~except that (ai) ~~each~~ any Restricted Subsidiary may declare and make Restricted Payments to the ~~Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ Company or any other Restricted ~~Subsidiaries and to each other owner of Equity Interests of such~~ Subsidiary at any time; (ii) any Restricted Subsidiary ~~based~~ may pay dividends ratably to its shareholders (or on ~~their relative ownership interests of~~ a basis more favorable to the ~~relevant class of Equity Interests~~Company); (biii) the ~~Borrower and each~~ Company may declare or make any Restricted Payments payable solely in shares of its Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Redeemable Stock); (iv) the ~~Restricted Subsidiaries~~ Company may declare and make ~~dividend payments~~ additional Restricted Payments; provided that (x) no Event of Default or ~~other distributions payable solely in the Equity Interests~~ Default has occurred and is continuing or would result from such Restricted Payment and (~~other than Disqualified Equity Interests~~y) ~~of the Borrower; (c) so long as immediately after~~ upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments by the Company pursuant to this clause (iv) on or after the Closing Date (other than pursuant to Section 10.11(b)), when combined with the sum of Specified Investments and Specified Subordinated Debt Prepayments, in each case, made on or after the Closing Date, does not exceed the Builder Basket Amount. (b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit: (i) ~~for all~~ repayment or refinancing of any Subordinated Debt with Permitted Refinancing Debt (as defined in the 2015-5.250% Indenture), or any Restricted ~~Payments~~ Payment made ~~pursuant~~ in exchange for, by conversion into or out of the net proceeds of the substantially concurrent sale (other than from or to ~~this Section 7.06(c~~a Subsidiary of the Company or from or to an employee stock ownership plan financed by loans from the Company or a Subsidiary of the Company) ~~in excess~~ of ~~C$55,000,000 which are attributable to clause~~ shares of Capital Stock (bother than Redeemable Stock) of the ~~Available Amount,~~ Company; (ii) the ~~Fixed Charge Coverage Ratio~~ payment of dividends on the Company’s shares of Common Stock (~~calculated on~~ as defined in the 2015-5.250% Indenture) in the aggregate amount per fiscal year equal to $0.68 per share for each share of Common Stock (or any securities convertible into Common Stock to the extent they are entitled to such a ~~Pro Forma Basis~~dividend) of the Company outstanding as of the ~~last day~~ applicable record date for such dividends (as such $0.68 shall be adjusted for specified changes in the capitalization of the ~~most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company upon recapitalizations, reclassifications, stock splits, stock dividends, reverse stock splits, stock consolidations and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)similar transactions); (eiii) ~~redemptions, repurchases, retirements or other acquisitions~~ the acquisition of ~~Equity Interests~~ shares of Capital Stock in connection with (x) the ~~Borrower or any of the Restricted Subsidiaries deemed to occur upon~~ exercise of employee or director stock options or ~~warrants or similar~~ stock appreciation rights ~~if such Equity Interests represent~~ by way of cashless exercise and (y) the withholding of a portion of such Capital Stock to pay taxes associated therewith, and the ~~exercise price~~ purchase of ~~such options~~ fractional shares of Capital Stock of the Company or ~~warrants~~ any Restricted Subsidiary arising out of stock dividends, splits or ~~similar rights~~combinations or business combinations; (fiv) the ~~Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case~~ acquisition of ~~any payment in respect of Equity Interests of any direct or indirect parent~~ shares of the ~~Borrower, the amount of such Restricted Payment is directly attributable~~ Company’s Capital Stock pursuant to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any equity repurchases from future, present or former ~~officers, directors, employees, members of management and consultants (~~directors or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) employees in an ~~aggregate amount after the First Amendment Effective Date, together with the aggregate~~ amount of ~~loans and advances~~ up to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any $2,000,000 per calendar year (~~it being understood that~~ and any ~~unused amounts~~ portion of such $2,000,000 not used in any calendar year may be carried ~~over~~ forward to the ~~immediately~~ next succeeding ~~three~~ calendar ~~years~~year)~~; provided that such amount~~ ; (v) dividends on Redeemable Stock of the Company or a Restricted Subsidiary, or dividends on preferred stock of a Restricted Subsidiary, in ~~any calendar year may be increased by an amount not to exceed~~ each case incurred in compliance with Section 4.9 of the 2015-5.250% Indenture; (yvi) the payment of cash ~~proceeds received by the Borrower or any~~ in lieu of the ~~Restricted Subsidiaries from the sale~~ issuance of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof Capital Stock in connection with a the conversion, retirement, repurchase or redemption of ~~Equity Interests~~ any series of convertible debt securities of the ~~Borrower~~ Company or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; (iivii) payments made to settle any warrants outstanding on December 8, 2015 issued in connection with the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existenceCompany’s convertible debt securities; (iii) 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) such Persons shall, promptly 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 (2viii) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04)~~ payment of the ~~Person formed in order~~ deferred purchase price or earn-outs, including holdbacks (and the receipt of any corresponding consideration therefor), or payments with respect to ~~consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~fractional shares, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes case in connection ~~therewith~~ with an acquisition 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~~ payment would have been permitted ~~under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made~~ by the ~~Borrower or a Restricted Subsidiary); (vi)~~ 2015-5.250% Indenture at the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement time of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Personsacquisition; and (~~viii~~ix) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such other Restricted Payments in ~~respect of~~ an ~~Unrestricted Subsidiary shall be permitted only~~ aggregate amount not to exceed $50,000,000; provided, however, that at the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividendtime of, ~~split or combination thereof~~and after giving effect to, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause Restricted Payment permitted under clauses (ii); , (jiv), (v) ~~in addition to the foregoing Restricted Payments~~ and ~~so long as~~ (ix) no Default or Event of Default shall have occurred and be continuing or would ~~result therefrom~~otherwise occur as a consequence thereof. The amount of net proceeds from any exchange for, conversion into or sale of Capital Stock of the ~~Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not~~ Company pursuant to ~~exceed the greater of~~ clause (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section ~~7.06; provided that~~ 10.11(b) shall be excluded from the ~~making~~ calculation of ~~such Restricted Payment will reduce capacity~~ the amount available for Restricted Payments pursuant to ~~such other provision when so made; and~~Section 10.11(a)(iv). (rc) For purposes of determining compliance with the ~~First Amendment Transactions and~~ covenant set forth in this Section 10.11, if a Restricted Payment meets the criteria of more than one of the types of Restricted Payments ~~made~~ described in clauses (b)(i) through (b)(ix) of Section 10.11(b) or pursuant to ~~effect~~ Section 10.11(a), the ~~First Amendment Transactions~~ Company, in its sole discretion, may order and ~~pay fees~~ classify, and ~~expenses related~~ subsequently reorder and reclassify, such Restricted Payment in any manner in compliance with this Section 10.11. (d) For purposes of this Section 10.11, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued for purposes of this Section 10.11 will be determined by, in the case of amounts under $25,000,000, an Officer (as hereinafter defined) of the Company and, in the case of amounts greater than or equal to $25,000,000, the Board of Directors of the Company whose resolution with respect thereto will be delivered to the Agent. For purposes of this paragraph (~~including Restricted Payments made (A) to holders~~ d), “Officer” means any of ~~restricted stock~~ the following of the Company: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or ~~performance stock units as provided by~~ the ~~First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~Secretary.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)

Restricted Payments. ~~Declare~~ (a) The Company and its Restricted Subsidiaries will not declare or ~~make, directly or indirectly,~~ make any Restricted Payment, ~~except~~except that: (ai) ~~each~~ any Restricted Subsidiary may declare and make Restricted Payments to the ~~Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ Company or any other Restricted ~~Subsidiaries and to each other owner of Equity Interests of such~~ Subsidiary at any time; (ii) any Restricted Subsidiary ~~based~~ may pay dividends ratably to its shareholders (or on ~~their relative ownership interests of~~ a basis more favorable to the ~~relevant class of Equity Interests~~Company); (biii) the ~~Borrower and each~~ Company may declare or make any Restricted Payments payable solely in shares of its Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Redeemable Stock); (iv) the ~~Restricted Subsidiaries~~ Company may declare and make ~~dividend payments~~ additional Restricted Payments; provided that (x) no Event of Default or ~~other distributions payable solely~~ Default has occurred and is continuing or would result from such Restricted Payment, (y) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable four fiscal quarter period, the Company could Incur (as defined in the ~~Equity Interests~~ 2020-4.000% Indenture) at least $1.00 of additional Debt (~~other than Disqualified Equity Interests~~as defined in the 2020-4.000% Indenture) pursuant to Section 4.9(a) of the ~~Borrower;~~ 2020-4.000% Indenture, and (cz) ~~so long as immediately after~~ upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments declared or made by the Company pursuant to this clause (iv) on or after October 30, 2020 (other than pursuant to clauses (ii) and (iv) through (xi) of Section 10.11(b)), when combined with the sum of Specified Investments and Specified Subordinated Debt Prepayments, in each case, made on or after the Closing Date, does not exceed the Builder Basket Amount. (b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit: (i) ~~for all~~ payment of any dividend on Capital Stock of any class within 60 days after the declaration thereof, or redemption of any Subordinated Debt (as defined in the 2020-4.000% Indenture) within 30 days after giving notice of redemption thereof, if, on the date when the dividend was declared or such notice of redemption given, the Company or such Restricted ~~Payments made pursuant to~~ Subsidiary could have paid such dividend or redeemed such Subordinated Indebtedness in accordance with this Section ~~7.06(c~~10.11; (ii) repayment or refinancing of any Subordinated Debt with Permitted Refinancing Debt (as defined in ~~excess~~ the 2020-4.000% Indenture), or any Restricted Payment made in exchange for, by conversion into or out of ~~C$55,000,000 which are attributable~~ the net proceeds of the substantially concurrent sale (other than from or to ~~clause~~ a Subsidiary of the Company or from or to an employee stock ownership plan financed by loans from the Company or a Subsidiary of the Company) of shares of Capital Stock (bother than Redeemable Stock) of the ~~Available Amount,~~ Company; (iii) the ~~Fixed Charge Coverage Ratio~~ payment of dividends on the Company’s shares of Common Stock (~~calculated on~~ as defined in the 2020-4.000% Indenture) in the aggregate amount per fiscal year equal to $1.20 per share for each share of Common Stock (or any securities convertible into Common Stock to the extent they are entitled to such a ~~Pro Forma Basis~~dividend) of the Company outstanding as of the ~~last day~~ applicable record date for such dividends (as such $1.20 shall be adjusted for specified changes in the capitalization of the ~~most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company upon recapitalizations, reclassifications, stock splits, stock dividends, reverse stock splits, stock consolidations and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)similar transactions); (eiv) ~~redemptions, repurchases, retirements or other acquisitions~~ the acquisition of ~~Equity Interests~~ shares of Capital Stock in connection with (x) the ~~Borrower or any of the Restricted Subsidiaries deemed to occur upon~~ exercise of employee or director stock options or ~~warrants or similar~~ stock appreciation rights ~~if such Equity Interests represent~~ by way of cashless exercise and (y) the withholding of a portion of such Capital Stock to pay taxes associated therewith, and the ~~exercise price~~ purchase of ~~such options~~ fractional shares of Capital Stock of the Company or ~~warrants~~ any Restricted Subsidiary arising out of stock dividends, splits or ~~similar rights~~combinations or business combinations; (fv) the ~~Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case~~ acquisition of ~~any payment in respect of Equity Interests of any direct or indirect parent~~ shares of the ~~Borrower, the amount of such Restricted Payment is directly attributable~~ Company’s Capital Stock pursuant to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any equity repurchases from future, present or former ~~officers,~~ directors, ~~employees, members of management and consultants (~~officers or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) employees in an ~~aggregate amount after the First Amendment Effective Date, together with the aggregate~~ amount of ~~loans and advances~~ up to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any $10,000,000 per calendar year (~~it being understood that~~ and any ~~unused amounts~~ portion of such $10,000,000 not used in any calendar year may be carried ~~over~~ forward to the ~~immediately~~ next succeeding ~~three~~ calendar ~~years~~year)~~; provided that such amount~~ ; (vi) dividends on Redeemable Stock of the Company or a Restricted Subsidiary, or dividends on preferred stock of a Restricted Subsidiary, in ~~any calendar year may be increased by an amount not to exceed~~ each case incurred in compliance with Section 4.9 of the 2020-4.000% Indenture; (yvii) the payment of cash ~~proceeds received by the Borrower or any~~ in lieu of the ~~Restricted Subsidiaries from the sale~~ issuance of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof Capital Stock in connection with a the conversion, retirement, repurchase or redemption of ~~Equity Interests~~ any series of convertible debt securities of the ~~Borrower~~ Company or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; (iiviii) upon the ~~proceeds~~ occurrence of ~~which shall be used~~ a Change of Control (as defined in the 2020-4.000% Indenture) or an Asset Disposition (as defined in the 2020-4.000% Indenture) and after the completion of the Offer to ~~pay~~ Purchase under Section 4.10 or 4.13 of the 2020-4.000% Indenture (~~or make Restricted Payments to allow any direct or indirect parent thereof to pay~~including the purchase of all Notes (as defined in the 2020-4.000% Indenture) ~~franchise~~ tendered and ~~similar Taxes, and other fees and expenses,~~ required to ~~maintain its~~ be purchased), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Debt (~~or any~~ as defined in the 2020-4.000% Indenture) required under the terms thereof as a result of such ~~direct~~ Change of Control or ~~indirect parent’s~~Asset Disposition at a purchase or redemption price not to exceed 101% (in the case of a Change of Control) ~~corporate~~ or ~~legal existence~~100% (in the case of an Asset Disposition) of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided that, in the case of an Asset Disposition, such purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Debt does not exceed the Net Available Proceeds from such Asset Disposition; (iii) 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) such Persons shall, promptly 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 (2ix) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04)~~ payment of the ~~Person formed in order~~ deferred purchase price or earn-outs, including holdbacks (and the receipt of any corresponding consideration therefor), or payments with respect to ~~consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~fractional shares, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes case in connection ~~therewith~~ with an acquisition 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~~ payment would have been permitted ~~under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made~~ by the ~~Borrower or a Restricted Subsidiary)~~2020-4.000% Indenture at the time of such acquisition; (vix) Restricted Payments in an aggregate amount not to exceed $30,000,000 per calendar year so long as, after giving pro forma effect thereto, the ~~proceeds~~ Total Leverage Ratio (as defined in the 2020-4.0000% Indenture) of ~~which will be used~~ the Company would not exceed 3.25 to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons1.00; and (~~viii~~xi) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such other Restricted Payments in ~~respect of~~ an ~~Unrestricted Subsidiary shall be permitted only~~ aggregate amount not to exceed $50,000,000; provided, however, that at the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividendtime of, ~~split or combination thereof~~and after giving effect to, any ~~Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests;~~ Restricted Payment permitted under clauses (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), ~~including deemed repurchases in connection with the exercise of stock options~~ (iii), (v), (vi), (viii), (x) and ~~any cash payment in respect of amounts described in the foregoing clause~~ (~~ii); (j~~xi) ~~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~~otherwise occur as a consequence thereof. The amount of net proceeds from any exchange for, conversion into or sale of Capital Stock of the ~~Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not~~ Company pursuant to ~~exceed the greater of (i) C$50,000,000 and~~ clause (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section ~~7.06; provided that~~ 10.11(b) shall be excluded from the ~~making~~ calculation of ~~such Restricted Payment will reduce capacity~~ the amount available for Restricted Payments pursuant to ~~such other provision when so made; and~~Section 10.11(a)(iv). (rc) For purposes of determining compliance with the ~~First Amendment Transactions and~~ covenant set forth in this Section 10.11, if a Restricted Payment meets the criteria of more than one of the types of Restricted Payments ~~made~~ described in clauses (b)(i) through (b)(xi) of Section 10.11(b) or pursuant to ~~effect~~ Section 10.11(a), the ~~First Amendment Transactions~~ Company, in its sole discretion, may order and ~~pay fees~~ classify, and ~~expenses related~~ subsequently reorder and reclassify, such Restricted Payment in any manner in compliance with this Section 10.11. (d) For purposes of this Section 10.11, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued for purposes of this Section 10.11 will be determined by, in the case of amounts under $50,000,000, an Officer (as hereinafter defined) of the Company and, in the case of amounts greater than or equal to $50,000,000, the Board of Directors of the Company whose resolution with respect thereto will be delivered to the Agent. For purposes of this paragraph (~~including Restricted Payments made (A) to holders~~ d), “Officer” means any of ~~restricted stock~~ the following of the Company: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or ~~performance stock units as provided by~~ the ~~First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~Secretary.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)

Restricted Payments. ~~Declare~~ So long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to declare or make, directly or indirectly, any Restricted Payment~~, except~~: (aA) ~~each~~ unless, at the time of such Restricted Payment: (i) no Default shall have occurred and be continuing or would occur as a consequence thereof; (ii) immediately after giving effect to such transaction on a pro forma basis, the Parent or such Subsidiary, as applicable, could incur $1.00 of additional Indebtedness under Section 3.13(F); and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent or such Subsidiary ~~may make~~ after the Issue Date, excluding Restricted Payments permitted by Section 3.11(B), is less than the amount equal to the Cumulative Credit. (B) The provisions of Section 3.11(A) will not prohibit: (i) Customary tax distributions and overhead payments; (ii) Cashless exchange of Indebtedness; (iii) Restricted Payments in the amount of five million dollars ($5,000,000) for repurchases of Ordinary Shares; provided no Default or Event of Default will have occurred and be continuing at the time of such Restricted Payment; (iv) to the extent constituting a Restricted Payment, the payment of fees of non-insider directors not to exceed an annual amount of [***] and the reimbursement of reasonable expenses; (v) (i) direct or indirect Restricted Payments to the Company and other Subsidiaries of the Company that are Guarantors from other Subsidiaries of the Borrower and ~~to the other Restricted Subsidiaries~~ (~~and,~~ ii) in the case of a Subsidiaries that are not Guarantors, direct or indirect Restricted ~~Payment by a non-Wholly Owned~~ Payments to other Subsidiaries that are not Guarantors; (vi) (i) Restricted ~~Subsidiary,~~ Payments to the ~~Borrower~~ Parent to be used for (A) customary director indemnification and compensation payments to the Parent’s director nominees serving on the board of directors of Parent, Company or on the board of directors of any ~~other~~ Subsidiary and (B) payment of income Taxes to the extent such income Taxes are attributable to the income of its direct or indirect Subsidiaries, and (ii) so long as no Event of Default has occurred and is continuing, Restricted ~~Subsidiaries~~ Payments to the Parent and to ~~each~~ Amryt Pharmaceuticals DAC to be used for financial and other ~~owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests~~ reporting and similar customary administrative costs and expenses attributable and fairly allocable to the Company and the Guarantors (including audit and professional fees and other ordinary course operating and administrative expenses incurred by the Parent in its capacity as the ultimate holding company of the ~~relevant class of Equity Interests~~Company and the other Guarantors); (bvii) the ~~Borrower and each of the Restricted Subsidiaries~~ Parent may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person (other than Disqualified Equity Interests~~) of the Borrower;~~); and (cviii) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ transactions consisting of ~~C$55,000,000 which are attributable to clause (b) of~~ intercompany services among the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 Parent and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted its wholly-owned Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred in the ordinary course of business ~~and other corporate overhead costs and expenses (including administrative~~on an arm’s length basis, 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 Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated charged on a ~~Pro Forma Basis)~~ cost plus ~~additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts~~ a maximum of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.0010% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsbasis. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 2 contracts

Sources: Indenture (Amryt Pharma PLC), Indenture (Amryt Pharma PLC)

Restricted Payments. ~~Declare or make~~Make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made~~ in respect of earn-outs, working capital adjustments or purchase price adjustments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on any Permitted Acquisition or ~~prior to the date of determination is greater than or equal to 2.00:1.00~~ other permitted Investments and (ii) ~~for all Restricted Payments made pursuant~~ in order to ~~this Section 7.06(c) no Specified Default shall have occurred~~ satisfy indemnity and ~~be continuing or would result therefrom,~~ other similar obligations in ~~each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time~~ respect of ~~the making of such Restricted Payment~~any Permitted 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 7.02 (other than ~~Section~~ 7.02(e) and 7.02(m)), ~~Section 7.03, Section 7.04, Section~~ 7.04 (other than 7.04(f)) or 7.05 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~7.05(e)(iv) and ~~7.08(m)(ii~~7.05(g)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower, any direct or indirect parent of the Borrower or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (f) ~~the~~ Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow the Borrower or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 or (ii) make Restricted Payments in the form of distributions to allow the Borrower or any direct or indirect parent of ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of the Borrower or such Restricted ~~Subsidiaries~~ Subsidiary (or Holdings or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 the Borrower or such Restricted Subsidiary (or ~~a breach~~ Holdings or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this ~~clause (f),~~ Section 7.06(f) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $100,000,000 in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to ~~the immediately~~ one or more succeeding ~~three~~ calendar years up to a maximum of $200,000,000 in any calendar year) carried forward to any fiscal year from preceding fiscal years); ~~provided~~ provided, further, that such amount in any calendar year may further be increased by an amount not to exceed ~~(y)~~ the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~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 ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant~~ of (or i) the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ (ii) any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or (iii) any ~~Subsidiary thereof~~ of Holdings’ Restricted Subsidiaries, in each case in connection with a the repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this ~~Agreement~~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 $550,000,000 and 50.0% of Consolidated EBITDA for the ~~Restricted Subsidiaries~~ most recently completed Test Period for which financial statements have been delivered (determined on a Pro Forma Basis in accordance with Section 1.09); provided that no 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 ~~the Borrower~~Holdings: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and expenses, in each case, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate or ~~legal~~ limited liability company existence; (iii) 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; provided, further, that such payments in respect of any Taxes attributable to the income of an Unrestricted Subsidiary shall be permitted only to the extent that such Unrestricted Subsidiary has made cash payments to the Borrower or any of its Restricted Subsidiaries for such purpose; (iv) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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 (B) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries that are Loan Parties or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of ~~the~~ any 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds~~ company of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);Subsidiaries; and (vi) the proceeds of which ~~will~~ shall be used by Holdings 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 by Holdings (or any direct or indirect parent of Holdings); (i) payments ~~due~~ made or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by Holdings, the Borrower or any of the Restricted ~~Subsidiary~~Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, ~~be permitted under this Agreement;~~ present or former employee, director, manager or consultant (~~vii~~or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) ~~the proceeds~~ and any repurchases of ~~which shall be used to pay cash,~~ Equity Interests in ~~lieu~~ consideration of ~~issuing fractional shares,~~ such payments including deemed repurchases in connection with the exercise of ~~warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and~~stock options; (~~viii~~j) ~~for~~ after a Qualified IPO and so long as no Event of Default has occurred and is continuing or would result therefrom, (i) any ~~taxable period for which~~ Restricted Payment by the Borrower ~~and/or~~ or any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ other direct or indirect parent of the Borrower ~~is the common parent (~~to pay listing fees and other costs and expenses attributable to being a ~~“Tax Group”), the proceeds of~~ publicly traded company which are ~~necessary~~ reasonable and customary and (ii) additional Restricted Payments not to ~~permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable~~ exceed up to the ~~income~~ sum of ~~Borrower and/or its Subsidiaries; provided that~~ (A) up to 6.0% per annum of the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer net proceeds received by (or ~~a stand-alone group~~contributed to) ~~for all applicable tax years~~ the Borrower and its Restricted Subsidiaries from such Qualified IPO and (Biii) ~~the amount of such~~ Restricted Payments in ~~respect~~ an aggregate amount per annum not to exceed 7.00% of ~~an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~Market Capitalization; (hk) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (il) ~~redemptions~~Restricted Payments (A) made using the Cumulative Credit at such time so long as, ~~repurchases, retirements or other acquisitions of Equity Interests (i) deemed to occur on~~ solely in the ~~exercise of options by the delivery of Equity Interests in satisfaction~~ case of the ~~exercise price~~ portion of the Cumulative Credit attributable to clause (b) thereof, no Event of Default under Section 8.01(a) or 8.01(f) exists or would result from the making of such ~~options~~ Restricted Payment or (iiB) ~~in consideration~~ made using the portion, if any, of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the ~~exercise of stock options and any cash payment in respect of amounts described in~~ Available Excluded Contribution Amount on such date that the ~~foregoing~~ Borrower elects to apply to this clause (~~ii)~~l)(B) to the extent such Restricted Payment is made within 12 months of the date of designation of such Available Excluded Contribution Amount; (jm) ~~in addition to the foregoing Restricted Payments and~~ so long as no Event of Default shall have occurred and be continuing or would otherwise result therefrom, ~~the Borrower and the Restricted Subsidiaries may make additional~~ other Restricted Payments ~~in an aggregate amount since~~ such that the ~~First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of~~ Consolidated Total ~~Assets determined at the time of incurrence of such Indebtedness (calculated~~ Net Leverage Ratio on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is Basis would be less than or equal to 5.00:1.00; (kn) ~~after a Qualifying IPO, the declaration and payment~~ distributions or payments of ~~dividends on the Borrower’s common stock~~ Securitization Fees; (~~and~~ o) the Borrower ~~and its restricted Subsidiaries~~ may ~~pay dividends to any of its parents to permit such parent to pay such dividends)~~make Restricted Payments, in ~~the~~ an aggregate amount not to exceed $50,000,000 in any calendar ~~year~~ year, to pay for the redemption, acquisition, retirement or repurchase, in each case for nominal value, of up Equity Interests of Holdings, the Borrower (or any direct or indirect parent Holdings or the Borrower) from a former investor of a business acquired in a Permitted Acquisition or similar Investment or a current or former employee, officer, director, manager or consultant of a business acquired in a Permitted Acquisition or similar Investment (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), which Equity Interest was issued as part of an earn-out or similar arrangement in the acquisition of such business, and which redemption, acquisition, retirement or repurchase relates to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time failure of such ~~Qualifying IPO;~~earn-out to fully vest; and (~~l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m~~p) the distribution, by dividend or otherwise, or other transfer or disposition of shares of ~~capital stock of~~Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that, directly or indirectly, owns the Equity Interests of one or more Unrestricted Subsidiaries and no other assets (other than de minimis assets)), or Indebtedness owed to the ~~Borrower~~ Issuer or a Restricted Subsidiary byby an Unrestricted Subsidiary (or a Restricted Subsidiary that, directly or indirectly, owns the Equity Interests of one or more Unrestricted Subsidiaries and no other assets (other than de minimis assets)), in each case, other than Unrestricted Subsidiaries, the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Equivalents All Restricted Payments made by a non-wholly owned Subsidiary shall be made on a pro rata basis or on a basis even more favorable to ~~effect~~ the ~~Original Transaction; (q) the making of any~~ Borrower and its Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Subsidiaries.

Appears in 2 contracts

Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)

Restricted Payments. ~~Declare or make~~MCC will not, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or nor will it permit any of its Restricted Subsidiaries ~~in connection with the death~~to, ~~disability, retirement~~ declare or ~~termination of employment or service of~~ make any ~~such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person~~ Restricted Payment at any ~~time after such Person’s disability~~time, ~~retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date~~except that, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as at the time thereof and after giving effect thereto (and to any concurrent incurrence of any Indebtedness) no Default or Event of Default shall have occurred and be ~~continuing or would result therefrom, the Borrower and the Restricted Subsidiaries~~ continuing: (a) [Intentionally deleted.]; (b) [Intentionally deleted.]; (c) [Intentionally deleted.]; (d) MCC may make ~~additional~~ payments to Holdings and ▇▇▇▇▇▇▇ pursuant to the Tax Consolidation Agreements; (e) MCC may make Restricted Payments to officers and other executive employees of MCC and its Subsidiaries to the extent constituting Special Deferred Compensation; (f) [Intentionally deleted.]; (g) MCC may make Restricted Payments in ~~an aggregate amount since~~ respect of one or more employee compensation plans (including “phantom stock” payments referred to in the ~~First Amendment Effective Date not to exceed~~ definition of the ~~greater~~ term “Restricted Payments” in Section 1.01) maintained for employees of ~~(i) C$50,000,000~~ MCC and ~~(ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts~~ its Restricted Subsidiaries so long as ~~immediately after giving effect to~~ the aggregate amount of such Restricted Payments made in any single fiscal year shall not exceed $1,500,000 and the aggregate amount of such ~~additional unlimited amounts~~ Restricted Payments made during the period commencing on the Effective Date through the term of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00this Agreement shall not exceed $10,000,000; (kh) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions[Intentionally deleted. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made]; and (ri) ~~the First Amendment Transactions and~~ any Subsidiary of MCC may make Restricted Payments ~~made~~ to ~~effect~~ any Loan Party. Nothing herein shall be deemed to prohibit the ~~First Amendment Transactions and pay fees and expenses related thereto~~ payment of dividends or other distributions in respect of equity by any Subsidiary of MCC to any Loan Party (~~including Restricted Payments made~~ or, in the case of any Subsidiary of MCC that is not a Loan Party, to each holder of ownership of such Subsidiary on a pro rata basis based on their relative ownership interests (A) or on a basis more favorable to ~~holders of restricted stock or performance stock units as provided by~~ the ~~First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement~~Loan Parties)).”

Appears in 2 contracts

Sources: Amendment No. 3, Credit Agreement (Morris Publishing Finance Co)

Restricted Payments. ~~Declare~~ The Company 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) ~~each Restricted Subsidiary~~ the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its Subsidiaries, (d) solely to the ~~Borrower~~ extent that the Covenant Suspension Period is not in effect, the Company and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 its Subsidiaries may ~~declare and~~ make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments ~~made pursuant~~ in an aggregate amount not to ~~this Section 7.06(c~~exceed the greater of (x) ~~in excess~~ $50,000,000 and (y) 2.5% of ~~C$55,000,000 which are attributable to clause~~ Consolidated Total Assets (~~b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis)~~ determined as of the last day of the most ~~recently ended Test Period on~~ recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the ~~date~~ delivery of ~~determination is greater than or equal~~ any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to ~~2.00:1.00 and (ii~~in Section 3.04(a)) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to at the time of the making of such Restricted Payment; , of Restricted Payments made pursuant to this clause (d) and (e) solely to the extent ~~constituting Restricted Payments~~that the Covenant Suspension Period is not in effect, the ~~Borrower~~ Company and ~~the Restricted~~ its Subsidiaries may ~~enter into and consummate transactions expressly permitted by~~ make any ~~provision of Section 7.02 (~~other ~~than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));~~ Restricted Payment pursuant to this clause (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as ~~in the case~~ (i) no Default or Event of ~~any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ Default has occurred and is continuing prior to making such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f), not to exceed the greater of~~ e) or would arise after giving effect (~~w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated~~ including giving effect on a Pro Forma Basis) thereto and (ii) the Leverage Ratio is equal to or less than the Applicable Restricted Payment Ratio Level after giving effect (including giving effect on a Pro Forma Basis) to any such Restricted Payment made pursuant to this clause (e). As used in the ~~aggregate in any calendar year~~ foregoing clause (~~it being understood that any unused amounts in any calendar year may be carried over~~ e), “Applicable Restricted Payment Ratio Level” means a ratio equal to 3.00(x) during the ~~immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not~~ Covenant Adjustment Period, 3.25 to ~~exceed~~ 1.00 and (y) following the ~~cash proceeds received by~~ Covenant Adjustment Period, 3.50 to 1.00. For the ~~Borrower or~~ avoidance of doubt, it is hereby understood and agreed that any Restricted Payment made at a time when all of the ~~Restricted Subsidiaries from the sale of Equity Interests~~ conditions set forth in clause (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount~~e) of this Section 6.07 are satisfied shall utilize the ~~Borrower or any direct or indirect parent of the Borrower~~ basket set forth in such clause (~~to the extent contributed to the Borrower~~e) ~~to any future, present or former employee, officer, director, member of management or consultant~~ and shall not utilize (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to ~~constitute a Restricted Payment for purposes~~ utilize) the basket set forth in clause (d) of this Section ~~7.06 or any other provision~~ 6.07. Notwithstanding the foregoing, and for the avoidance of ~~this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower:~~ doubt, (i) the ~~proceeds~~ conversion by holders of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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~~any cash payment upon conversion), ~~which are reasonable and customary and incurred in the ordinary course~~ or required payment of ~~business~~any principal or premium on, ~~attributable to the ownership~~ or ~~operations~~ required payment of ~~the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently interest with the closing of such Investment and (B) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or respect to, ~~as applicable, the Borrower or a Restricted Subsidiary~~any Permitted Convertible Notes, in each case, in accordance with the ~~requirements~~ terms of ~~Section 6.12 and Section 7.02; (iv)~~ the ~~proceeds of which~~ indenture governing such Permitted Convertible Notes, shall ~~be used to pay (or make~~ not constitute a Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salaryPayment; provided that, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Note (excluding any required payment of interest with respect to such ~~salaries, bonuses~~ Permitted Convertible Note and ~~other benefits are attributable~~ excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment does not trigger or correspond to ~~the ownership~~ an exercise or ~~operation~~ early unwind or settlement of a corresponding portion of the ~~Borrower and its Restricted Subsidiaries or~~ Bond Hedge Transactions constituting Permitted Call Spread Swap Agreements relating to such Permitted Convertible Note (~~B) shall be used~~ including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction constituting a Permitted Call Spread Swap Agreement relating to ~~make payments permitted under Section 7.08(c)(i~~such Permitted Convertible Note), the payment of such excess cash shall constitute a Restricted Payment notwithstanding this clause (ei)~~, (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w)~~ ; and (yii) ~~(but only~~ any required payment with respect to, or required early unwind or settlement of, any Permitted Call Spread Swap Agreement, in each case, in accordance with the terms of the agreement governing such Permitted Call Spread Swap Agreement shall not constitute a Restricted Payment; provided that, to the extent ~~such payments have not been and are not expected~~ cash is required to be ~~made~~ paid under a Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the ~~Borrower~~ Company (or ~~a Restricted Subsidiary);~~ its Affiliate) (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, including in connection with the exercise ~~of warrants, options~~ and/or early unwind or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”settlement thereof), the ~~proceeds of which are necessary to permit the common parent~~ payment of such ~~Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such~~ cash shall constitute a Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing Payment notwithstanding this clause (ii)~~; (j) in addition to~~ . Notwithstanding the ~~foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom~~foregoing, the ~~Borrower and~~ Company may repurchase, exchange or induce the ~~Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater~~ conversion of ~~(i) C$50,000,000 and (ii) 1.5%~~ Permitted Convertible Notes by delivery of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as shares of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the BorrowerCompany’s common stock and/or a different series of Permitted Convertible Notes (which series (x) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the ~~Borrower~~ analogous date under the indenture governing the Permitted Convertible Notes that are so repurchased, exchanged or converted and ~~its restricted Subsidiaries may pay dividends~~ (y) has terms, conditions and covenants that are no less favorable to ~~any~~ the Company than the Permitted Convertible Notes that are so repurchased, exchanged or converted (as determined by the board of ~~its parents to permit such parent to pay such dividends)~~directors of the Company, or a committee thereof, in good faith)) (any such series of Permitted Convertible Notes, “Refinancing Convertible Notes”) and/or by payment of cash (in an amount that does not exceed the ~~aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds~~ proceeds received by ~~or contributed to~~ the ~~Borrower or a Restricted Subsidiary in or~~ Company from ~~any such Qualifying IPO and (ii) 6.00% of~~ the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, substantially concurrent issuance of shares of ~~capital~~ the Company’s common stock ofand/or Refinancing Convertible Notes plus the net cash proceeds, if any, received by the Company pursuant to the related exercise or early unwind or termination of the related Permitted Call Spread Swap Agreements pursuant to the immediately following proviso); provided that, substantially concurrently with, or ~~Indebtedness owed to the Borrower~~ a commercially reasonable period of time before or ~~a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries~~after, the ~~primary assets~~ related settlement date for the Permitted Convertible Notes that are so repurchased, exchanged or converted, the Company shall (and, for the avoidance of ~~which are cash and Cash Equivalents);~~ doubt, shall be permitted under this Section 6.07 to) exercise or unwind or terminate early (~~n) Restricted Payments to satisfy appraisal~~ whether in cash, shares or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (pcombination thereof) the ~~Original Transaction and Restricted Payments made to effect~~ portion of the ~~Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof~~Permitted Call Spread Swap Agreements, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant any, corresponding to such ~~other provision when~~ Permitted Convertible Notes that are so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock repurchased, exchanged or ~~performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~converted.

Appears in 2 contracts

Sources: Credit Agreement (CIMPRESS PLC), Credit Agreement (CIMPRESS PLC)

Restricted Payments. ~~Declare~~ The Borrower will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except~~except as follows: (ai) ~~each~~ 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 Capital Stock). (ii) the Borrower may make Restricted Payments (including, without limitation, the declaration and payment of cash distributions to its Equity Interest holders) up to the amount of Available Cash so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) no Commitment Deficiency exists at such time or would result therefrom and (iii) after giving effect to such Restricted Payment, the Borrower is in Pro Forma Compliance with (A) Section 9.01 and (B) a minimum Recognized Value Ratio of 2.00 to 1.00. (iii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests. (iv) any Restricted Subsidiary may make Restricted Payments to the Borrower ~~and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ or any other ~~Restricted 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);~~Loan Party. (bv) the Borrower may make Restricted Payments pursuant to and ~~each of the Restricted Subsidiaries may declare and make dividend payments~~ in connection with stock option plans or other ~~distributions payable solely in the Equity Interests (other than Disqualified Equity Interests)~~ benefit plans or arrangements for directors, management, employees or consultants of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted ~~Subsidiaries may make~~ Subsidiaries; provided that the amount of Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); cash under this clause (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or~~ shall not exceed $5,000,000 during any of the Restricted 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 warrants or similar rights;fiscal year. (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (gvi) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made constituting purchases by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion Subsidiary of any ~~income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such~~ other Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the BorrowerSubsidiary’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to ~~or in connection with~~ a ~~consolidation, amalgamation, merger, transfer of assets or acquisition that complies with~~ transaction expressly permitted by Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions9.05. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Atlas Energy, L.P.)

Restricted Payments. ~~Declare or make~~Make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made~~ in respect of earn-outs, working capital adjustments or purchase price adjustments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on any Permitted Acquisition or ~~prior to the date of determination is greater than or equal to 2.00:1.00~~ other permitted Investments and (ii) ~~for all Restricted Payments made pursuant~~ in order to ~~this Section 7.06(c) no Specified Default shall have occurred~~ satisfy indemnity and ~~be continuing or would result therefrom,~~ other similar obligations in ~~each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time~~ respect of ~~the making of such Restricted Payment~~any Permitted 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 7.02 (other than ~~Section~~ 7.02(e) and 7.02(m)), ~~Section 7.03, Section 7.04, Section~~ 7.04 (other than 7.04(f)) or 7.05 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~7.05(e)(iv) and ~~7.08(m)(ii~~7.05(g)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower, any direct or indirect parent of the Borrower or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (f) ~~the~~ Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow the Borrower or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 or (ii) make Restricted Payments in the form of distributions to allow the Borrower or any direct or indirect parent of ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of the Borrower or such Restricted ~~Subsidiaries~~ Subsidiary (or Holdings or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 the Borrower or such Restricted Subsidiary (or ~~a breach~~ Holdings or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this ~~clause (f),~~ Section 7.06(f) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $50,000,000 in any calendar year (~~it being understood that~~ which shall increase to $100,000,000 in any calendar year following a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to ~~the immediately~~ one or more succeeding ~~three~~ calendar years up to a maximum of $100,000,000 in any calendar year (which shall increase to $200,000,000 in any calendar year following a Qualified IPO) carried forward to any fiscal year from preceding fiscal years); ~~provided~~ provided, further, that such amount in any calendar year may further be increased by an amount not to exceed ~~(y)~~ the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~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 ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant~~ of (or i) the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ (ii) any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or (iii) any ~~Subsidiary thereof~~ of Holdings’ Restricted Subsidiaries, in each case in connection with a the repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this ~~Agreement~~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 $150,000,000 and 15.0% of Consolidated EBITDA for the ~~Restricted Subsidiaries~~ most recently completed Test Period for which financial statements have been delivered (determined on a Pro Forma Basis in accordance with Section 1.09); provided that no 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 ~~the Borrower~~Holdings: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Avantor, 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) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) [Reserved]; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 4.00 to ~~the time of the making of such Restricted Payment~~1.00; (de) 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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) ~~and 7.08(m)(ii~~or 7.08(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower 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 ~~warrants or similar rights~~warrants; (fg) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members~~ manager or consultant of ~~management and consultants~~ such Restricted Subsidiary (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of~~ the Borrower (or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $75,000,000 in any calendar year (~~it being understood that any~~ which shall increase to $150,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum of $150,000,000 in any calendar year or $400,000,000 subsequent to the ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the ~~cash proceeds received by~~ extent contributed to the ~~Borrower or any of~~ Borrower, the ~~Restricted Subsidiaries~~ Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent companies, in each case to members of ~~the Borrower (to the extent contributed to~~ management, managers, directors or consultants of Holdings, the Borrower~~) to any future~~, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less (iii) the amount of any Restricted ~~Subsidiaries after~~ Payments previously made with the ~~Closing Date; provided, further, that~~ cash proceeds described in clause (1i) and (ii) of this Section 7.06(g); (h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, when combined with prepayment of ~~the aggregate increase contemplated by clauses~~ Indebtedness pursuant to Section 7.13(a)(iv), (x) 3.00% of Total Assets, plus (y) so long as no Default has occurred and ~~(z) above in any calendar year~~ is continuing or would result therefrom and ~~(2) cancellation of Indebtedness owing to~~ the Fixed Charge Coverage Ratio on a consolidated basis for the Borrower ~~or any~~ and its Restricted ~~Subsidiary from any future~~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, ~~present or former employee~~determined on a pro forma basis, ~~officer~~the portion, ~~director~~if any, ~~member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ of the ~~foregoing) of~~ Cumulative Credit on such date that the Borrower ~~or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed~~ elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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~~business and 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; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ 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) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay (customary salary, bonus and other benefits payable to officers and employees of Holdings or ~~make Restricted Payments to allow~~ any direct or indirect parent ~~thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds~~ company of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted ~~Subsidiaries or~~ Subsidiaries; and (Bvi) the proceeds of which shall be used by Holdings to pay (or to make ~~payments permitted under Section 7.08(c)(i),~~ Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (~~e),~~ other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (~~g), (h),~~ or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; (j~~), (k), (l), (m), (n), (o), (p), (r), (t), (w~~) ~~and (y) (but only to the extent such~~ payments ~~have not been and are not~~ made or expected to be made by the Borrower or a any of the Restricted ~~Subsidiary); (vi) the proceeds~~ Subsidiaries in respect of ~~which will be used~~ required withholding or similar non-US Taxes with respect to ~~make payments due~~ any future, present or ~~expected to be due to cover social security~~former employee, ~~Medicare~~director, ~~employment insurance, statutory pension plan, withholding~~ manager or consultant and ~~other taxes payable and other remittances to Governmental Authorities~~ any repurchases of Equity Interests in ~~connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement~~ consideration of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, payments including deemed repurchases in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposestock options; (hk) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (ii) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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; (il) ~~redemptions~~after a Qualified IPO, ~~repurchases, retirements or other acquisitions of Equity Interests~~ (i) ~~deemed to occur on the exercise of options~~ any Restricted Payment by the ~~delivery of Equity Interests in satisfaction~~ Borrower or any other direct or indirect parent of the ~~exercise price of such options or~~ Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) ~~in consideration~~ Restricted Payments not to exceed the sum of ~~withholding or similar taxes payable~~ (A) up to 6% per annum of the net proceeds received by ~~any future, present or former officer, employee, director, member of management or consultant~~ (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (jcontributed to) ~~in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom,~~ the Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ from such Qualified IPO and (B) Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ per annum not to exceed ~~the greater of~~ (ix) ~~C$50,000,000 and (ii) 1.5~~3.50% of ~~Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated~~ Market Capitalization, if, on a Pro Forma ~~Basis) plus additional unlimited amounts so long as immediately~~ Basis after giving effect to the payment of any such ~~additional unlimited amounts of~~ Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 5.50 to 1.00 and (~~calculated~~ y) 4.75% of Market Capitalization, so long as, on a Pro Forma ~~Basis) as of the last day of the most recently ended Test Period on or prior~~ Basis after giving effect to the ~~date~~ payment of ~~determination is~~ any such Restricted Payment, the Consolidated Total Net Leverage Ratio shall be less than or equal to ~~5.00:1.00~~5.50 to 1.00; (km) ~~after a Qualifying IPO, the declaration and payment~~ distributions or payments of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOSecuritization Fees; (ln) Restricted Payments that are made with ~~Excluded Contributions~~ the net proceeds of the Timeshare Disposition; provided that for the most recently ended Test Period immediately preceding the date of such Restricted Payment, after giving effect to the ~~extent Not Otherwise Applied~~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; (mo) the distribution, by dividend or otherwise, of ~~shares of capital stock~~ Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary ~~by,~~ by an Unrestricted ~~Subsidiaries~~ Subsidiary (or a 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,~~ Subsidiaries the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.and (p) ~~the Original Transaction and~~ Restricted Payments that are made (i) in an amount equal to ~~effect~~ the ~~Original Transaction;~~ amount of Excluded Contributions previously received or (qii) without duplication with clause (i), in an amount equal to the ~~making~~ Net Proceeds from a Disposition in respect of ~~any Restricted Payment within sixty (60) days~~ property or assets acquired after the ~~date of declaration thereof~~Closing Date, if at the ~~date~~ acquisition of such ~~declaration such Restricted Payment would have complied~~ property or assets was financed with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Excluded Contributions.

Appears in 1 contract

Sources: Credit Agreement (Hilton Worldwide Holdings Inc.)

Restricted Payments. ~~Declare~~ None of the Loan Parties will, or ~~make~~will permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make or declare any Restricted ~~Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted~~ Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than ~~Disqualified Equity Interests) of the Borrower;~~ any Restricted Payment payable (~~c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c~~and paid) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the ~~Borrower owned directly~~ Company), or ~~indirectly by such parent~~incur any obligation (contingent or otherwise) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person to do so at any ~~time after such Person’s disability~~time, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;except for: (gi) the Borrower and the Restricted Subsidiaries may make ~~Restricted Payments to any direct or indirect parent~~ dividends and other distributions payable solely in the same class of ~~the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses~~ Equity Interests of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted SubsidiariesPerson; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existencePermitted Affiliate Payments; (iii) repurchases of Equity Interests in a cashless transaction deemed 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~~ occur upon exercise or vesting of ~~such Investment and (B) such Persons shall~~restricted stock, ~~promptly following the closing thereof, cause (1) all property acquired (whether assets~~ stock options or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02warrants; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Company may make Restricted Payments with the proceeds received from the issuance of its Equity Interests (other than the issuance of Equity Interests to a Loan Party or any Subsidiary thereof); (v) to the extent constituting Restricted Payments, the Borrower and ~~the~~ its Restricted Subsidiaries may ~~make additional~~ enter into transactions permitted by Sections 7.23 and 7.24; (vi) purchases of Receivables Financing Assets pursuant to a Receivables Financing Repurchase Obligation in connection with a Qualified Receivables Financing and the payment or distribution of Receivables Financing Fees; (vii) other Restricted Payments ~~in an aggregate amount since~~ of the ~~First Amendment Effective Date not to exceed the greater of~~ Borrower or any Restricted Subsidiary; provided, that (iA) ~~C$50,000,000~~ no Default shall have occurred and ~~(ii) 1.5% of Consolidated Total Assets determined~~ be continuing at the time ~~of incurrence~~ such 4894-8247-74844903-2775-7170 v.911 Restricted Payment is made or would result from the making or declaration of such ~~Indebtedness~~ Restricted Payment, (~~calculated~~ B) the Loan Parties shall be in compliance on a ~~Pro Forma Basis) plus additional unlimited amounts so long as immediately~~ pro forma basis after giving effect to ~~any~~ such ~~additional unlimited amounts of~~ Restricted ~~Payment~~Payment with the Financial Covenants, ~~the Total Net Leverage Ratio (calculated on a Pro Forma Basis)~~ recomputed as of the last day of the most recently ended ~~Test Period~~ Quarter for which financial statements have been delivered pursuant to Section 7.01 and calculated as if such Restricted Payment was made on the first day of the 12-month period then ended and (C) either (i) at the time of such Restricted Payment, the Cash Flow Ratio is less or ~~prior~~ equal to than 3.00 to 1.00 (such compliance to be determined on the basis of the financial information most recently delivered to the ~~date~~ Administrative Agent and the Lenders pursuant to Section 7.01(a) or (b)) on a pro forma basis after giving effect to such Restricted Payment or (ii) at the time of ~~determination~~ such Restricted Payment, the Cash Flow Ratio is greater than 3.00 to 1.00, but less than or equal to ~~5.00:1.00;~~ 4.25 to 1.00 (~~k) after a Qualifying IPO, the declaration and payment of dividends~~ such compliance to be determined on the ~~Borrower’s common stock (~~basis of the financial information most recently delivered to the Administrative Agent and the ~~Borrower~~ Lenders pursuant to Section 7.01(a) or (b)) on a pro forma basis after giving effect to such Restricted Payment and ~~its restricted Subsidiaries may pay dividends~~ the aggregate amount of Restricted Payments made pursuant to ~~any of its parents to permit such parent to pay such dividends~~this Section 7.19(vii)(C)(ii), in together with the aggregate amount of Investments made pursuant to Section 7.18(xv)(C)(ii) and not repaid or otherwise returned, in ~~any calendar year of up to~~ each case, after the Amendment No. 3 Effective Date, shall not exceed the sum of (a) $600 million plus (b) the net proceeds from any sale or issuance of Equity Interests by the Company to any Person (other than the Company or any of its Restricted Subsidiaries) and the amount of Permitted Convertible / Exchange Indebtedness of the Company that is converted or exchanged into Equity Interests, in each case, after January 1, 2024 (with non-cash proceeds to be valued by the Company in good faith) plus (c) an amount equal to (1) Cumulative Adjusted Operating Income minus (2) 1.4 multiplied by Cumulative Interest Expense; (viii) (i) ~~6.00%~~ (A) making any payment of ~~the Net Cash Proceeds received by~~ premium or ~~contributed to the Borrower~~ other amount in respect of, and otherwise performing its obligations under, any Permitted Bond Hedge Transaction and (B) making any payments or ~~a Restricted Subsidiary in~~ deliveries under Permitted Convertible / Exchange Indebtedness or ~~from any such Qualifying IPO and~~ (ii) ~~6.00%~~ (A) delivering shares of the ~~market capitalization~~ common stock or preferred stock (other than Disqualified Stock) in the Company upon the exercise and settlement or termination of any Permitted Warrant Transaction and (B) making any payment in cash (including by set-off) upon the exercise and settlement or termination of any Permitted Warrant Transaction.; (ix) buybacks, purchases, redemptions, retirements or other acquisitions of Equity Interests of the ~~Borrower~~ Company in an aggregate amount not to exceed $50,000,000; and (x) other Restricted Payments consisting of the prepayment, repayment, purchase or redemption of other unsecured Indebtedness of the Company and its Restricted Subsidiaries; provided, that at the time of such ~~Qualifying IPO;~~ Restricted Payment, the Cash Flow Ratio is less or equal to than 4.75 to 1.00 (~~l) Restricted Payments that are made with Excluded Contributions~~ such compliance to be determined on the basis of the financial information most recently delivered to the ~~extent Not Otherwise Applied; (m)~~ Administrative Agent and the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, Lenders pursuant to Section 7.01(a) or ~~in connection with~~ (b)) on a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous pro forma basis after giving effect to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Payment.

Appears in 1 contract

Sources: Credit Agreement (AMC Networks Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of such a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made pursuant~~ on the Closing Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the ~~Available Amount~~Transactions, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ in respect of working capital adjustments or purchase price adjustments pursuant to ~~this Section 7.06(c~~the Acquisition Agreement or the Split Brands Acquisition Agreement and (iii) ~~no Specified Default shall have occurred~~ in order to satisfy indemnity and ~~be continuing~~ other similar obligations under the Acquisition Agreement or ~~would result therefrom, in each case~~ the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~Split Brands Acquisition Agreement; (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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(f) ~~and 7.08(m)(ii~~or 7.08(l)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of ~~the Restricted Subsidiaries~~ Holdings 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 ~~warrants or similar rights~~warrants; (f) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or the Borrower or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $20,000,000 in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $40,000,000 in any calendar ~~years~~year); provided further that such amount in any calendar year may further be increased by an amount not to ~~exceed~~ exceed: (yA) amounts used to increase the ~~cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests~~ Cumulative Credit pursuant to clauses (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount~~b) and (c) of the ~~Borrower or any direct or indirect parent~~ definition of ~~the Borrower~~ “Cumulative Credit”; (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (zB) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; ~~provided, further,~~ and provided further that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant (or~~ of the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or any ~~Subsidiary thereof~~ of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) 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) $50,000,000, plus (y) if (A) the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.75 to 1.00 and (B) the Secured Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.75 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 and the ~~Restricted Subsidiaries~~ Payment Condition is satisfied; (h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~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 ~~of such Persons~~ 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~~business and 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 or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted 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) franchise ~~and similar Taxes~~taxes, and other fees and expenses, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ 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 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) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)6.11; (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under ~~Section 7.08(c)(i),~~ Sections 7.08 (~~e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w~~i) and (yp) (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 (vi) the proceeds of which ~~will~~ shall be used by Holdings 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; (i) payments ~~due~~ made or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by Holdings, the Borrower or any of the Restricted ~~Subsidiary~~Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, ~~be permitted under this Agreement;~~ present or former employee, director, manager or consultant (~~vii~~or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) ~~the proceeds~~ and any repurchases of ~~which shall be used to pay cash~~Equity Interests in consideration of such payments including deemed repurchases, in ~~lieu of issuing fractional shares~~each case, in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposestock options; (hj) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any ~~exercise~~ vesting of ~~warrants, options or other securities convertible into or exchangeable for~~ Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00;; and (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), Restricted Payments in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part amount of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ~~Contributions~~Contribution. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Abl Credit Agreement (Prestige Brands Holdings, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ Subsidiary and to each other owner 55738387_110 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 ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~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 to Holdings that are used by Holdings solely to fund cash interest payments required to be made by Holdings with respect to Indebtedness permitted to be incurred by Holdings pursuant to Section 7.03(r) (the “Holdings Restricted Payments Election”), the Borrower may make such Restricted Payments to Holdings in each case so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries ~~may make Restricted Payments~~ shall be in Pro Forma Compliance with an ~~amount not to exceed~~ Interest Coverage Ratio of at least 2.00:1.00 for the ~~Available Amount immediately prior~~ Test Period then most recently ended for which financial information has been delivered to the ~~time~~ Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) and evidenced by a certificate from the chief financial officer of the ~~making of~~ Borrower demonstrating such ~~Restricted Payment~~compliance calculation in reasonable detail; (d) [Reserved];the Borrower and each Restricted Subsidiary may make distributions to joint venture partners in Brazil to the extent that such amounts are structured to serve as a component of compensation providing more favorable tax treatment than salary and are deducted in determining Consolidated Net Income; (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 ~~7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(d) and ~~7.08(m)(ii~~(e)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (fg) the Borrower ~~and the Restricted Subsidiaries~~ may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ Holdings (or ~~such~~ any direct or indirect parent thereof) ~~held~~ by any future, present or former ~~officers~~employee, ~~directors, employees, members of management and consultants (~~consultant or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners)~~ director of the Borrower (or Holdings or any direct or indirect parent of ~~the Borrower~~Holdings) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow 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, consultant or director of the Borrower (or Holdings or any direct or indirect parent of Holdings) or any of its Subsidiaries in ~~connection with~~ lieu of cash payments for the ~~death, disability~~repurchase, retirement or ~~termination~~ other acquisition or retirement for value of ~~employment~~ such Equity Interests held by such Persons, in each case, pursuant to any employee or ~~service~~ 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, consultant or director of ~~any such Person~~ the Borrower (or ~~a breach~~ Holdings or any direct or indirect parent of Holdings) or any ~~non-compete or other restrictive covenant or confidentiality obligations~~ of ~~any such Person at any time after such Person’s disability, retirement or termination~~ its Subsidiaries; provided that the aggregate amount of ~~employment or service~~Restricted Payments made pursuant to this clause (g) in ~~an aggregate amount after the First Amendment Effective Date~~any calendar year, ~~together~~ when combined with the aggregate amount of ~~loans and advances to~~ all cash payments (whether principal or interest) made by the ~~Borrower made~~ Loan Parties in respect of any promissory notes pursuant to Section ~~7.02(m~~7.03(j) in ~~lieu of Restricted Payments permitted by this clause (f)~~such calendar year, shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood~~ $40,000,000, provided that any unused amounts in any calendar year may be carried over to ~~the immediately~~ 55738387_110 succeeding ~~three~~ 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 all 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 $50,000,000; provided that any cancellation of Indebtedness owing to the Borrower in connection with and as consideration for a repurchase of Equity Interests of Holdings (or any of its direct or indirect parents) shall not be deemed to constitute a Restricted Payment for purposes of this clause (g); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to exceed the remainder of (yx) the ~~cash proceeds received by~~ sum of (1) the ~~Borrower or any~~ amount of ~~the Restricted Subsidiaries from the sale~~ Net Cash Proceeds of issuances of Equity Interests (other than issuances of Equity Interests made pursuant to Section 8.05 and proceeds from the issuance of Disqualified Equity Interests~~, Excluded Contributions or amounts~~ ) to the extent that ~~increased the Available Amount) of~~ such Net Cash Proceeds shall have been actually received by the Borrower through a capital contribution of such Net Cash Proceeds by Holdings (and to the extent not used to make an Investment pursuant to Section 7.02(o) or (v), a payment pursuant to Section 7.03(j), a prepayment of Junior Financings pursuant to Section 7.13(a)(v) or a Restricted Payment pursuant to Section 7.06(g), (j) or (m)), in each case to employees, directors, officers, members of management or consultants of Holdings (or any direct or indirect parent of ~~the Borrower (to the extent contributed to the Borrower~~Holdings) ~~to any future, present~~ or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries ~~or any direct or indirect parent of the Borrower~~ that occurs after the Closing ~~Date,~~ Date plus (z2) the net cash proceeds of key man life insurance policies received by Holdings, the Borrower or ~~the~~ any of its Restricted Subsidiaries after the Closing ~~Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses~~ Date less (y) ~~and~~ the aggregate amount of all Restricted Payments made after the Closing Date with the net cash proceeds described in preceding clause (x) (2) less (z) ~~above~~ the aggregate amount of all cash payments made in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner respect of any of promissory notes pursuant to Section 7.03(j) after the ~~foregoing) of~~ Closing Date in reliance on the ~~Borrower or any direct or indirect parent thereof or any Subsidiary thereof~~ last proviso appearing in ~~connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this~~ Section ~~7.06 or any other provision of this Agreement~~7.03(j); (gh) the Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings or to any direct or indirect parent company of ~~the Borrower~~Holdings: (i) the proceeds of which ~~shall~~ will be used to pay ~~(or make Restricted Payments~~ the amount any such Person would be required to ~~allow any direct or indirect parent thereof~~ pay in respect of Income Taxes attributable to ~~pay) operating costs and expenses~~ the income of such ~~Persons~~ Person and its subsidiaries, including the Borrower and its Restricted Subsidiaries and Other Parent Subsidiaries; provided, however, that in each case the amount of such payments in any tax year are reduced by Income Taxes required to be paid by such Person arising from businesses that are unrelated to the businesses conducted by the Other Parent Subsidiaries on the Closing Date (except Income Taxes attributable to the income of Unrestricted Subsidiaries shall not reduce such payments to the extent such payments would otherwise be reduced by such Income Taxes and amounts are received from Unrestricted Subsidiaries to pay such Income Taxes); (ii) the proceeds of which shall be used by such Person to pay (A) its operating expenses incurred in the ordinary course of ~~business and~~ business, (B) 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,~~ business and (C) any reasonable and customary indemnification claims made by directors or officers of any such Person attributable to the ownership or operations of the Borrower and its ~~Restricted~~ Subsidiaries; (iiiii) the proceeds of which shall be used by such Person to pay (~~or make Restricted Payments to allow any direct or indirect parent thereof to pay~~A) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate existence or ~~legal existence~~(B) costs and expenses incurred by it or any of its direct or indirect parents in connection with such entity being a public company, including 55738387_110 costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002; (~~iii~~iv) [Reserved]; (v) to finance any Investment permitted to be made pursuant to Section ~~7.02~~7.02 (other than clause (e) thereof); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such ~~Persons~~ Person shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity ~~Interests~~Interest) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~Permitted Acquisition, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02;~~6.11; and (ivvi) the proceeds of which shall be used by such Person to pay ~~(or 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 (whether or not successful)~~Agreement; (vi) so long as (i) no Default shall have occurred and be continuing or would result therefrom and (ii) immediately after giving effect to such Restricted Payment, the Borrower and the Restricted Subsidiaries shall be in Pro Forma Compliance with the Financial Covenant, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (1) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this Section 7.06(i) and (2) the ~~proceeds~~ aggregate amount of ~~which~~ payments made pursuant to Section 7.13(a)(iv), not to exceed the greater of (A) ~~shall be used to pay customary salary, bonus, severance~~ $160,000,000100,000,000 and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h),~~ 6.23.0% of Total Assets; (j), ) so long as (~~k), (l), (m), (n), (o), (p), (r), (t), (w~~i) no Default shall have occurred and be continuing or would result therefrom and (yii) (immediately after giving effect to such Restricted Payment, but only to the extent ~~such payments have not been and are not expected to be made by~~ utilizing the amounts under clause (A)(ii) of the defined term “Cumulative Growth Amount”, the Borrower and the Restricted Subsidiaries shall be in Pro Forma Compliance with the Financial Covenant, the Borrower may make additional Restricted Payments to any direct or a indirect parent company in an amount not to exceed the Cumulative Growth Amount immediately prior to the making of such Restricted ~~Subsidiary)~~Payment; (vik) ~~the proceeds of which will be used to make~~ cash payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares or interests in connection with the exercise of warrants, options or other rights or securities convertible into or exchangeable for Equity Interests of ~~such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is~~ the ~~common parent (a “Tax Group”)~~Borrower; provided, ~~the proceeds of which are necessary to permit the common parent of~~ that any such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period cash payment shall not ~~exceed that amount~~ be for the purpose of ~~such Taxes that Borrower and/or its Subsidiaries,~~ evading the limitation of this covenant (as ~~applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B)~~ determined in good faith by the ~~amount~~ board of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any directors of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (iiBorrower); (jl) [Reserved];cash payments of accrued interest under unsecured and subordinated loans owing by the Borrower to Holdings not to exceed $5,000,000 in ~~addition to~~ any fiscal year; provided that any portion of the foregoing ~~Restricted Payments and~~ amount not used in a particular fiscal year may be carried over for use in any subsequent fiscal year; (m) so long as no ~~Event of~~ Default shall have occurred and be continuing or would result therefrom, the Borrower ~~and the Restricted Subsidiaries~~ may make additional Restricted Payments with the proceeds of Excluded Contributions; and 55738387_110 (n) repurchases, redemptions and other acquisitions of Equity Interests in Employment Participation Subsidiaries held by current or former restaurant employees of, and development partners with, the Borrower or any of its Restricted Subsidiaries; (o) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings in an aggregate amount ~~since the First Amendment Effective Date~~ not to exceed $500,000,000, the ~~greater~~ proceeds of which are used to prepay or repay, directly or indirectly, Indebtedness under the CMBS Facilities Documentation; and (p) so long as, (i) ~~C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated~~ on a Pro Forma Basis~~) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment~~, the Total Net Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination~~ is ~~less~~ no greater than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO 2.50:1.00 and (ii) ~~6.00% of the market capitalization of~~ no Default shall have occurred and be continuing or would result therefrom, the Borrower ~~at the time of such Qualifying IPO; (l)~~ may make additional Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsPayments. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Bloomin' Brands, Inc.)

Restricted Payments. ~~Declare~~ The Borrower will not, nor will it permit any Subsidiary Loan Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: , so long as no Default has occurred and is continuing or would occur as a result thereof, (ai) ~~each Restricted Subsidiary~~ the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of Common Stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) the Borrower may pay the Dividend, (v) the Borrower may repurchase shares of Common Stock pursuant to the Tender Offer, (vi) the Borrower may effect open market purchases of up to approximately 5% (as the same may increase or decrease based on the number of shares acquired in the Tender Offer) of its shares of Common Stock outstanding on the date hereof, and (vii) the Borrower may make other Restricted ~~Subsidiaries~~ Payments so long as the aggregate amount of Restricted Payments made pursuant to this clause (~~and~~vii) after the date hereof does not exceed $50 million; (viii) Restricted Payments made pursuant to the Share Forward Purchase Agreements; and (ix) any other cash Restricted Payment, provided that, in the case of this clause (ix), on a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately pro forma basis after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net 's Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination~~ is less than ~~or equal~~ 1.50 to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions1.00. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Gartner Group Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ any other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower ~~and~~ or any such other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the form of common equity or Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted to be incurred under Section 7.03) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ Restricted Payments made ~~pursuant~~ on the Closing Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted PaymentTransactions; (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 (other than Section 7.02(e~~) and 7.02(m~~)), ~~Section 7.03, Section 7.04, Section 7.05~~ 7.04 (other than ~~Section 7.05(e)~~a merger or consolidation involving the Borrower) or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(a), (j) ~~and 7.08(m)(ii~~or (k)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower ~~and the Restricted Subsidiaries~~ may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ Holdings (or ~~such~~ of any direct or indirect parent thereof) or any phantom or notional equity interests held by any future, present or former ~~officers~~employee, ~~directors~~director, ~~employees, members of management and consultants~~ consultant or distributor (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan, employee or director phantom or notional equity interest plan, or any other employee or director benefit plan or any agreement (including any stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of the Borrower (or ~~a breach~~ any direct or indirect parent of the Borrower) or any ~~non-compete or other restrictive covenant or confidentiality obligations~~ of ~~any such Person at any time after such Person’s disability, retirement or termination of employment or service)~~ its Subsidiaries in an aggregate amount after the ~~First Amendment Effective Date,~~ Closing Date together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $7,500,000 in any calendar year ~~(it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to the ~~immediately~~ next two succeeding ~~three~~ calendar years); provided that such amount in any calendar year may be increased by by: (i) an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date~~; provided~~, (ii) to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, ~~further~~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 (1iii) the ~~Borrower may elect~~ amount of any cash bonuses or other compensation otherwise payable to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former director, employee, ~~officer, director, member of management~~ consultant or ~~consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ distributor of the ~~foregoing) of the Borrower or any~~ Borrower, a direct or indirect parent ~~thereof~~ thereof, or ~~any Subsidiary thereof~~ its Subsidiaries that are foregone in ~~connection with a repurchase~~ return for the receipt of Equity Interests of ~~the~~ Holdings or a direct or indirect equity holder thereof, Borrower or any ~~direct or indirect parent thereof will not be deemed to constitute a~~ Restricted ~~Payment for purposes of this Section 7.06 or any other provision of this Agreement~~Subsidiary; (g) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to Holdings or to any direct or indirect parent or member of ~~the Borrower~~Holdings: (i) (A) with respect to any taxable period ending after the Closing Date for which Borrower is treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions (including for estimated Tax payments) to Borrower’s direct or indirect equity owners in an aggregate amount equal to the product of (x) the taxable income of Borrower for such taxable period, reduced by any cumulative net taxable loss with respect to all prior taxable periods ending after the Closing Date (determined as if all such taxable periods were one taxable period) to the extent such cumulative net taxable loss would have been deductible by the equity owners against such taxable income if such loss had been incurred in the taxable period in question (assuming that the equity owners have no items of income, gain, loss, deduction or credit other than through Borrower) and (y) the highest combined marginal U.S. federal, state and local income tax rate applicable to any direct or indirect equity owner of Borrower for such taxable period (taking into account the character of the taxable income in question (long term capital gain, qualified dividend income, etc.) and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitation thereon)); provided that distributions otherwise permitted under this clause (i)(A) in respect of the 2014 taxable year shall be reduced by any estimated tax distributions made by the Borrower in respect of such taxable year prior to the Closing Date, and (B) with respect to any taxable period ending before the Closing Date for which Borrower was treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to Borrower’s direct or indirect equity owners in an aggregate amount equal to the product of (x) any additional taxable income for such taxable period resulting from a tax audit adjustment made after the Closing Date and (y) the highest combined marginal U.S. federal, state and local income tax rate applicable to any direct or indirect equity owner of Borrower for such taxable period (taking into account the character of the additional taxable income in question (long term capital gain, qualified dividend income, etc.) and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitations thereon)) plus any penalties, additions to tax or interest that may be imposed as a result of such audit adjustment; (ii) the proceeds of which ~~shall~~ will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses (including, following the consummation of ~~such Persons~~ a Qualifying 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, attributable to the ownership or operations of the Borrower and its ~~Restricted~~ Subsidiaries; (iiiii) the proceeds of which ~~shall~~ will be used to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise and similar Taxes, and other ~~fees~~ fees, taxes and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (~~iii~~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) ~~such Persons~~ Holdings and the Borrower shall, ~~promptly~~ 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 (which shall be a Restricted Subsidiary to the extent required by Section 7.02) or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of the Person formed or acquired by the Borrower or a Restricted Subsidiary in order to consummate such ~~Investment or acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02~~; (ivv) 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 unsuccessful equity or debt offering permitted by this ~~Agreement (whether or not successful);~~Agreement; and (vvi) the proceeds of which (A) ~~shall~~ will be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) ~~shall~~ will be used to make payments permitted under ~~Section 7.08(c)(i), (e), (g~~Sections 7.08(e), (h), (~~j), (~~k~~), (l), (m), (n), (o), (p), (r), (t), (w~~) and (yq) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (i) ~~redemptions~~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, ~~repurchases~~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, ~~retirements~~ other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or ~~other acquisitions~~ Form S-8 and (ii) an amount equal to 6% of the market capitalization at the time of such public offering (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 exercise price of such options or (ii) in consideration of withholding or similar ~~taxes~~ Taxes payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options ~~and~~ or the vesting of any ~~cash payment in respect of amounts described in the foregoing clause (ii)~~equity awards; (jk) the Borrower may make additional Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) in ~~addition~~ an aggregate amount not to exceed the sum of, (i) when taken together with any prepayments, repayments, redemptions, purchases, defeasances or other satisfactions of Junior Financings made pursuant to Section 7.11(a)(v)(A), the greater of (A) $35,000,000 and (B) an amount equal to the ~~foregoing~~ Equivalent Percentage of the amount set forth in clause (A) multiplied by TTM Consolidated Adjusted EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination, and (ii) the Available Amount at such time, if the Total Net Leverage Ratio is no greater than the Closing Date Total Net Leverage Ratio, after giving Pro Forma Effect to such Restricted ~~Payments~~ Payment and ~~so long~~ measured as of and for the Test Period immediately preceding such Restricted Payment for which financial statements are available; provided, in each case, that no Default or Event of Default shall have occurred and be continuing or would result therefrom~~, the Borrower and the~~ ; (l) Restricted ~~Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of~~ Payments; provided that (i) ~~C$50,000,000~~ no Default or Event of Default shall exist at such time or after giving effect to such Restricted Payment and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (~~calculated on a~~ after giving Pro Forma ~~Basis~~Effect such Restricted Payment) ~~as of the last day of the most recently ended Test Period on or prior to the date of determination is~~ would be less than or equal to ~~5.00:1.00; (k) after a Qualifying IPO,~~ the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Closing Date Total Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise AppliedLeverage Ratio less 1.50:1.00; (m) the distribution, by as a dividend or otherwise, of ~~shares~~ Equity Interests in, Indebtedness owing to, and/or of ~~capital stock~~ other securities of, ~~or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than~~ any Unrestricted Subsidiaries~~, the primary assets of which are cash and Cash Equivalents);~~; and (n) the making of the Specified Distribution. The amount set forth in Section 7.06(k)(i) (without duplication) may, in lieu of Restricted ~~Payments~~ Payments, be utilized by the Borrower or any Restricted Subsidiary to ~~satisfy appraisal~~ (i) make or ~~other dissenters’ rights, pursuant~~ hold any Investments without regards to ~~or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with~~ Section 7.02 or ~~Section 7.04;~~ (oii) ~~redemptions in whole~~ prepay, repay redeem, purchase, defease or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous otherwise satisfy prior to the ~~Lenders in all respects material~~ scheduled maturity thereof any Junior Financing without regards to ~~their interests as those contained~~ Section 7.12. For purposes of determining compliance with this Section 7.06, in the ~~Equity Interests redeemed thereby; provided, further,~~ event that ~~such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of~~ any Restricted Payment ~~within sixty~~ (60or any portion thereof) ~~days after~~ meets the ~~date~~ criteria of ~~declaration thereof~~more than one of the categories set forth above, if the Borrower may, in its sole discretion, at the ~~date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making~~ time of such Restricted Payment ~~will reduce capacity for~~ is made, divide, classify or reclassify, or at any later time divide, classify, or reclassify, such Restricted ~~Payments pursuant to such other provision when so made; and~~ Payment (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or ~~performance stock units as provided by the First Amendment Transaction Agreement and (B~~any portion thereof) in ~~order to satisfy indemnity and other similar obligations under~~ any manner that complies with this covenant on the ~~First Amendment Transaction Agreement)~~date such Restricted Payment is made or such later time, as applicable.

Appears in 1 contract

Sources: First Lien Credit Agreement (Authentic Brands Group Inc.)

Restricted Payments. ~~Declare~~ (A) Prior to the Investment Grade Date, it will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except:~~ except (a) ~~each~~ any Restricted Subsidiary may declare and make Restricted Payments pro rata to the owners of its Equity Interests, (b) the Borrower may make Restricted Payments to the ~~Borrower and~~ owners of its Equity Interests to the ~~other Restricted Subsidiaries~~ extent of the amount of “Available Cash” (~~and,~~ as defined in the ~~case~~ Partnership Agreement) in accordance with the terms of the Partnership Agreement, (c) the Borrower may make and declare Restricted Payments in exchange for, or out of the net cash proceeds from the substantially concurrent sale (other than to a Restricted ~~Payment by a non-Wholly Owned Restricted~~ Subsidiary) of, ~~to the Borrower and any other Restricted 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~~Borrower (other than Disqualified Equity); , (bd) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire (on a pro rata basis with respect to all of its Equity Interests) Equity Interests issued by it with the ~~Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in~~ proceeds received from the substantially concurrent issuance by it of new Equity Interests (other than Disqualified ~~Equity Interests~~Equity); and (e) of the ~~Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all~~ Borrower Parties may make other Restricted Payments ~~made pursuant to~~ not otherwise permitted by the foregoing clauses in this Section ~~7.06(c)~~ 6.08 in ~~excess~~ an amount in the aggregate during any 12-month period not to exceed an amount equal to 1% of ~~C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis)~~ Consolidated Net Tangible Assets as of the ~~last day~~ most recent delivery of ~~the most recently ended Test Period on~~ financial statements pursuant to Section 5.01(a) or ~~prior~~ Section 5.01(b); provided, with respect to ~~the date~~ each of ~~determination is greater than or equal to 2.00:1.00~~ clauses (a), (b), (c), (d) and (iie) ~~for all Restricted Payments made pursuant to this Section 7.06(c)~~ above, that no ~~Specified~~ Default ~~shall have~~ has occurred and be is continuing or would result therefrom; and (B) On or after the Investment Grade Date, ~~in each case the Borrower~~ it will not, and ~~the Restricted Subsidiaries may make Restricted Payments in an amount~~ will not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or permit any of its Restricted Subsidiaries ~~in connection with the death~~to, ~~disability~~declare or make, ~~retirement~~ or ~~termination of employment~~ agree to pay or ~~service of any such Person (~~make, directly or ~~a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability~~indirectly, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that wouldPayment, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default ~~shall have~~ has occurred and ~~be continuing~~ is continuing, or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Fourth Amended and Restated Credit Agreement (Genesis Energy Lp)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Lead Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Lead Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Lead Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Lead Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.14 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (d) to the extent constituting Restricted Payments, the Lead Borrower and ~~the~~ its Restricted Subsidiaries may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of~~ Section ~~7.02 (other than Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03~~‎7.04, ~~Section 7.04, Section 7.05 (other than Section 7.05(e))~~ ‎7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~‎7.14; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Lead Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment~~ 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 Lead Borrower is ~~directly attributable to the Equity Interests~~ a member of ~~the Borrower owned directly~~ a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, Federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, Federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Lead Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of~~ taxes that would have been payable by the ~~foregoing) of the~~ Lead Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings’) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Lead Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Lead Borrower and its Restricted ~~Subsidiaries~~Subsidiaries or (b) the fees and other amounts described in Section 7.08(d) to the extent that the Lead Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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 Lead 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’s), the Lead Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Lead Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ to the extent contributed in cash to the common equity of the Lead Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Lead Borrower’s direct or ~~legal existence~~indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Lead Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Restatement Effective Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 Lead Borrower, it would have constituted a “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of the Lead Borrower ~~and/or~~ and its Restricted Subsidiaries; (f) in addition to the foregoing Restricted Payments, additional Restricted Payments following the Restatement Effective Date in an aggregate amount not to exceed the greater of $20,000,000 and 1.5% of Consolidated Total Assets; (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 Lead Borrower from such Qualifying IPO; provided that ~~(A) the amount of~~ immediately before and immediately after giving effect to any such Restricted ~~Payments for any taxable period~~ Payment, no Default or Event of Default shall ~~not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would~~ have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years~~ occurred and ~~(B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ be ~~permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~continuing; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests[reserved]; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~(i) deemed~~ of Parent, Holdings, the Lead Borrower or any Restricted Subsidiary to ~~occur on~~ fund the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration~~ payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii);~~options; and (j) in addition to the foregoing Restricted ~~Payments and~~ Payments, additional Restricted Payments, so long ~~as no Event of Default shall have occurred and be continuing or would result therefrom~~as, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Conditions are satisfied.

Appears in 1 contract

Sources: Abl Credit Agreement (GMS Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments ratably with respect to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries 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 of the Restricted Subsidiaries~~ FNIS may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default Termination shall have occurred and be continuing or would result therefrom, FNIS may make Restricted Payments; provided that FNIS would be in Pro Forma Compliance with the covenants set forth in Section 10, in each case such compliance to be determined on the ~~Borrower~~ basis of the financial information most recently delivered to the Agent and the ~~Restricted Subsidiaries may make Restricted Payments~~ Purchasers (either pursuant to Section 1(a) of Annex C or Section 1(b) of Annex C or in ~~an amount not~~ any subsequent delivery of financial information by FNIS to ~~exceed~~ the ~~Available Amount immediately~~ Agent prior to ~~the time of the making of~~ such Restricted ~~Payment~~Payments); (d) to the extent constituting Restricted ~~Payments~~Payments permitted by other clauses of this Section 6, ~~the Borrower~~ FNIS and ~~the~~ its Restricted Subsidiaries may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of~~ Section ~~7.02 (other than Section 7.02(e)~~ 5 and ~~7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~8; (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~in the Borrower or any of the Restricted 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 ~~warrants or similar rights~~warrants; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries FNIS may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 cash payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of FNIS and its Restricted Companies; (g) FNIS may repurchase common stock of FNIS in an aggregate purchase amount determined by FNIS up to $2,500,000,000 pursuant to a self-tender to be made by FNIS to purchase shares of its common stock in the open market (or through such ~~Persons~~other means as FNIS may elect); and (~~viii~~h) ~~for any taxable period for which the Borrower and/or any~~ FNIS may repurchase up to 15 million shares of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or authority granted by FNIS’s board of directors in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsFebruary 2010. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Receivables Purchase Agreement (Fidelity National Information Services, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted ~~Payment~~Payment on or after the Closing Date, except: (a) each ~~Restricted~~ Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ its other ~~Restricted~~ Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned Restricted~~ wholly owned Subsidiary, to the Borrower and any of its other ~~Restricted~~ 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~~ its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in ~~the~~ Equity Interests (other than Disqualified Equity ~~Interests~~Interests not permitted by Section 7.03) of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment[Reserved]; (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 7.02 (other than Section 7.02(e~~) and 7.02(m~~)), ~~Section 7.03, Section 7.04, Section 7.05~~ 7.04 (other than ~~Section 7.05(e)~~a merger or consolidation of Holdings and the Borrower) or ~~Section~~ 7.08 (other than Section ~~7.08(i) and 7.08(m)(ii~~7.08(a)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights[Reserved]; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years)[Reserved]; provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;and (g) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to ~~any direct or indirect parent of the Borrower~~Holdings: (i) the proceeds of which will be used 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 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, reduced by any such taxes paid or to be paid directly by the Borrower or its subsidiaries; provided that at least ten (10) days prior to the Borrower or Holdings making any Restricted Payments permitted under this clause (i), the Borrower shall have delivered to the Administrative Agent a statement describing the amount and basis for such Restricted Payments in reasonable detail; provided further that such proposed Restricted Payments shall not be permitted under this clause (i) if, within five (5) days after the Borrower provides such statement to the Administrative Agent, the Required Lenders provide written notice to the Borrower that they do not consent to such Restricted Payment, such consent not to be unreasonably withheld, conditioned or delayed; (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 ~~of such Persons~~ 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, attributable to the ownership or operations of the Borrower and its ~~Restricted~~ Subsidiaries; (iiiii) the proceeds of which shall be used to pay (~~or make Restricted Payments to allow any direct or indirect parent thereof to pay~~A) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and ~~expenses,~~ expenses required to maintain its (corporate existence or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) costs and expenses incurred by it in connection with such ~~Persons shall~~entity being a public company, ~~promptly following~~ including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.022002; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful)[Reserved]; (v) [Reserved]; and (vi) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its Restricted~~ the Subsidiaries or (B) shall be used to make payments permitted under Section ~~7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y~~7.08(f) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a ~~Restricted~~ Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Transaction Support Agreement (J Crew Group 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: (a) ~~each Restricted~~ the Borrower or any Subsidiary may ~~make Restricted Payments~~ declare and pay dividends with respect to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of its Equity Interests payable solely in additional shares of ~~such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests)~~its common stock; (b) ~~the Borrower and each of the Restricted~~ Subsidiaries may ~~declare and~~ make ~~dividend payments or other distributions payable solely in the~~ Restricted Payments ratably with respect to their Equity Interests ~~(other than Disqualified Equity Interests) of the Borrower~~so long as such Restricted Payment is not prohibited by Sections 6.03 and 6.04; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments pursuant to and in ~~an amount not to exceed the Available Amount immediately prior to the time~~ accordance with stock option or equity-based plans or other benefit plans for directors, employees or consultants of the ~~making of such Restricted Payment~~Borrower and its Subsidiaries; (d) to (i) the ~~extent constituting Restricted Payments,~~ purchase or any other payment in respect of any Permitted Equity Derivatives in connection with the ~~Borrower~~ issuance of any Convertible Debt Securities permitted under Section 6.01 (and the ~~Restricted Subsidiaries may enter into and consummate transactions expressly permitted by~~ replacement of any ~~provision of Section 7.02 (other than Section 7.02(e~~such Permitted Equity Derivatives) and ~~7.02(m))~~(ii) the partial or complete unwinding, ~~Section 7.03~~acceleration, ~~Section 7.04, Section 7.05 (other than Section 7.05(e))~~ settlement or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~termination of any Permitted Equity Derivatives or Permitted Warrant Transactions the entry into which was not prohibited by this Agreement; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or and its Subsidiaries may make any of other Restricted Payment so long as the Restricted ~~Subsidiaries deemed to occur upon exercise of stock options or warrants or similar rights if~~ Payment Requirements are satisfied in connection with such ~~Equity Interests represent a portion of the exercise price of such options or warrants or similar rights~~Restricted Payment; (f) the Borrower ~~and the Restricted Subsidiaries~~ may ~~pay (or~~ make ~~Restricted Payments to allow~~ interest payments due on any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years)Convertible Debt Securities; provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;and (g) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, Convertible Debt Securities if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be are permitted ~~only to the extent that cash distributions were made~~ by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement6.09(c).

Appears in 1 contract

Sources: Credit Agreement (Nextgen Healthcare, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a ~~non~~Restricted Subsidiary that is not Wholly-~~Wholly~~ Owned by the Borrower or a Restricted Subsidiary, to the Borrower ~~and any other~~ or such Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount or amounts applied to incur Contribution Indebtedness), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(r) or Junior Financing Prepayments pursuant to Section 7.14(a)(ii) or to make previous Restricted Payments pursuant to this Section 7.06(c) or to increase the Cumulative Credit; provided that the aggregate amount of Restricted Payments made in ~~excess of C$55,000,000 which are attributable to~~ reliance on this clause (bc) during the Covenant Amendment Period shall not exceed the aggregate amount of cash proceeds contributed to the common equity of the ~~Available Amount,~~ Borrower from the ~~Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as~~ Net Cash Proceeds of ~~the last day of the most recently ended Test Period~~ any Permitted Equity Issuance on or ~~prior~~ after the Amendment No. 2 Effective Date (which shall be calculated to ~~the date of determination is greater than~~ exclude (i) Net Cash Proceeds constituting any Cure Amount or ~~equal~~ amounts applied to ~~2.00:1.00~~ incur Contribution Indebtedness and (ii) ~~for all~~ the amount of such Net Cash Proceeds that have been applied (w) to make Investments pursuant to Section 7.02(r), (x) to make Junior Financing Prepayments pursuant to Section 7.14(a)(ii), (y) to make previous Restricted Payments ~~made~~ pursuant to this Section 7.06(c) ~~no Specified Default shall have occurred and be continuing~~ or ~~would result therefrom, in each case~~ (z) to increase the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~Cumulative Credit); (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 ~~Section~~ Sections 7.02(e) (with respect to Restricted Payments under this Section 7.06) and ~~7.02(m~~(n)), Section ~~7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)~~6.18(e); (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of clause (iv) below, to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ clause (iv) or (viii) below, no Specified Event of Default shall have occurred and be continuing or would result therefrom: (i) so long as the Borrower ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state, provincial or ~~any~~ local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which such a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated income tax return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (A) ~~to any future, present or former employee, officer, director, member~~ such taxes that would have been payable by the Borrower and its Subsidiaries as a stand-alone group and (B) the actual tax liability of ~~management or consultant~~ Holdings’ (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner~~ of any of ~~the foregoing) of the Borrower or any of its Subsidiaries or any~~ Holdings’ direct or indirect parent ~~of the Borrower that occurs after the Closing Date~~entity’s) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (A) its operating ~~costs and~~ expenses ~~of such Persons~~ 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, plus customary salary, bonus, severance and other benefits or claims payable to, and indemnities provided on behalf of, current or former directors, officers, managers, employees or consultants (or, solely with respect to benefits, any family member thereof) of any such parent company, to the extent such salary, bonuses, severance and other benefits, claims or indemnities 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 6.18(d) to the extent that the Borrower would be then permitted under such Section 6.18(d) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) its franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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 or former spouse), in an aggregate amount during any fiscal year not in excess of the greater of (x) $31,800,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period (which shall increase to the greater of (x) $44,500,000 and (y) 35.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period following a Qualifying Public Offering); provided that the Borrower may carry over and make in any subsequent fiscal years, in addition to the amount for such subsequent fiscal years, the amount not utilized in the prior fiscal 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, and (B) ~~corporate~~ 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 ~~legal existence~~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 parent companies that occurs after the Closing Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) to repurchase Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options, warrants, restricted stock units or similar investments; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering ~~permitted~~ by ~~this Agreement (whether~~ any direct or ~~not successful); (v) the proceeds~~ indirect parent of ~~which (A) shall be used to pay customary salary~~Holdings, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in ~~connection therewith to the extent such salaries, bonuses and other benefits are~~ each case directly attributable to the ~~ownership or operation~~ operations of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);Subsidiaries; and (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~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) 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 Section 7.06(f); provided that, immediately before and immediately after giving effect to any such Restricted Payment, no Specified Event of Default shall have occurred and be continuing; provided, further, that, during the Covenant Amendment Period, (w) for purposes of any Restricted Payment made pursuant to this clause (f) that is made in reliance on clause (a) of the definition of “Cumulative Credit”, clause (a) will be limited to $25,000,000 in its entirety rather than the amounts set forth therein, (x) no Restricted Payments made pursuant to this clause (f) shall be made in reliance on clause (b) of the definition of “Cumulative Credit”, (y) for purposes of any Restricted Payment made pursuant to this clause (f) that is made in reliance on clause (d) of the definition of “Cumulative Credit”, clause (d) will be limited to the cumulative amount of proceeds from the sale of Qualified Equity Interests of Holdings (or any direct or indirect parent of Holdings) contributed as cash to the common equity capital of the Borrower on or after the Amendment No. 2 Effective Date and on or prior to such time (including upon exercise of warrants or options) (other than (i) any Cure Amount, (ii) Permitted Equity Issuances which have been applied to make Investments pursuant to Section 7.02(r), Restricted Payments pursuant to Section 7.06(c) or Junior Financing Prepayments pursuant to Section 7.14(a)(ii), or (iii) amounts applied to incur Contribution Indebtedness) and (z) for purposes of any Restricted Payment made pursuant to this clause (f) that is made in reliance on clause (e) of the definition of “Cumulative Credit”, clause (e) will be limited to 100% of the aggregate amount of contributions (in cash or Cash Equivalents or the fair market value of property received) to the Qualified Equity Interests of Holdings (or any direct or indirect parent of Holdings) contributed to the common equity capital of the Borrower on or after the Amendment No. 2 Effective Date and on or prior to such time (other than (i) any Cure Amount, (ii) Permitted Equity Issuances which have been applied to make Investments pursuant to Section 7.02(r), Restricted Payments pursuant to Section 7.06(c) or Junior Financing Prepayments pursuant to Section 7.14(a)(ii), or (iii) amounts applied to incur Contribution Indebtedness); (g) after a Qualifying Public Offering, Restricted Payments per annum of up to the sum of (x) 6% of the Net Cash Proceeds contributed to the common equity of the Borrower from such Qualifying Public Offering and (y) 7% of the market capitalization of the Holdings or its direct or indirect listed parent; provided that, during the Covenant Amendment Period, no Restricted Payments pursuant to this clause (g) shall be permitted; (h) [reserved]; (i) repurchases of Equity Interests of Holdings or any direct or indirect parent of Holdings to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee, director, manager or consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options; (j) so long as no Specified Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments in an aggregate amount not to exceed the greater of (x) $44,500,000 and (y) 35.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period, less amounts utilized in respect of this clause (j) for Investments under Section 7.02(o) and for Junior Financing Prepayments under Section 7.14(a)(iv); provided that, during the Covenant Amendment Period, no Restricted Payments pursuant to this clause (j) shall be permitted; (k) Restricted Payments, so long as, after giving effect on a Pro Forma Basis to any such Restricted Payment, (x) no Specified Event of Default shall have occurred and be continuing or would result therefrom and (y) the Total Net Leverage Ratio most recently ended Test Period does not as of the date of determination exceed 3.50:1.00; (l) Restricted Payments to any direct or indirect parent entity to make cash payments in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeentity; (hm) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may ~~pay cash~~ repurchase (or make Restricted Payments to any direct or indirect parent ~~the proceeds of which shall be used~~ entity to enable it to ~~pay cash~~repurchase) ~~in lieu of fractional~~ Equity Interests ~~in connection with any dividend, split or combination thereof, any Permitted Acquisition or any~~ upon the exercise of ~~warrants,~~ options or warrants or other securities convertible into or exchangeable for Equity ~~Interests; (i) redemptions, repurchases, retirements or other acquisitions of~~ Interests if such Equity Interests ~~(i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction~~ represent all or a portion of the exercise price of such options or ~~(ii) in consideration~~ warrants or other securities as part of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii)a “cashless” exercise; (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (mn) the distribution, by dividend or otherwise, of ~~shares of capital stock~~ the Equity Interests of, or Indebtedness owed to the Borrower or a any of its Restricted ~~Subsidiary~~ Subsidiaries by, Unrestricted Subsidiaries (other than Unrestricted ~~Subsidiaries,~~ Subsidiaries the ~~primary~~ assets of which are solely comprised of cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.[reserved]; (p) ~~the Original Transaction and Restricted Payments made to effect the Original Transaction~~[reserved]; (q) [reserved]; and (r) the ~~making of~~ Borrower or any Restricted ~~Payment~~ Subsidiary may pay any dividend or consummate any redemption within sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration ~~such Restricted Payment~~ or notice, the dividend or redemption notice would have complied with ~~another provision of this Section 7.06; provided that~~ the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)provisions hereof.

Appears in 1 contract

Sources: First Lien Credit Agreement (Traeger, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.13 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.13; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clauseclause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ sub-clauseclause (iv), sub-clause (v), clause (vii) or sub-clauseclause (viii) below, no Event of Default under Section 8.01(a), (f) or (g) (or solely with respect to clause (v), no Event of Default) shall have occurred and be continuing or would result therefrom: (i) so long as the Borrower ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of~~ taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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 the greater of $20,000,00025,000,000 and 0.75% of Consolidated Total Assets 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 the greater of $20,000,00025,000,000 and 0.75% of Consolidated Total Assets 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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; (~~iii~~v) the proceeds of which will be used to ~~finance~~ repurchase the Equity Interests of Holdings or any ~~Investment~~ of its Restricted Subsidiaries (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interests) in an aggregate amount not in excess of the greater of $130,000,000 and 4% of Consolidated Total Assets; (vi) (v) 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, in connection with the exercise of warrants, options purchase or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeacquisition; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Amendment No. 6 (GMS Inc.)

Restricted Payments. ~~Declare~~ (A) Prior to the Investment Grade Date, it will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except:~~ except (a) ~~each~~ any Restricted Subsidiary may declare and make Restricted Payments pro rata to the owners of its Equity Interests, (b) the Borrower may make Restricted Payments to the ~~Borrower and~~ owners of its Equity Interests to the ~~other Restricted Subsidiaries~~ extent of the US-DOCS\121193765.6 amount of “Available Cash” (~~and,~~ as defined in the ~~case~~ Partnership Agreement) in accordance with the terms of the Partnership Agreement, (c) the Borrower may make and declare Restricted Payments in exchange for, or out of the net cash proceeds from the substantially concurrent sale (other than to a Restricted ~~Payment by a non-Wholly Owned Restricted~~ Subsidiary) of, ~~to the Borrower and any other Restricted 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~~Borrower (other than Disqualified Equity); , (bd) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire (on a pro rata basis with respect to all of its Equity Interests) Equity Interests issued by it with the ~~Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in~~ proceeds received from the substantially concurrent issuance by it of new Equity Interests (other than Disqualified ~~Equity Interests~~Equity); and (e) of the ~~Borrower; (c) so long as immediately after giving effect~~ Borrower Parties may make other Restricted Payments not otherwise permitted by the foregoing clauses in this Section 6.08 in an amount in the aggregate during any 12-month period not to ~~such Restricted Payment,~~ exceed an amount equal to (i) ~~for all Restricted Payments made~~ prior to the occurrence of the Alkali Transition Event, 1.0% of Consolidated Net Tangible Assets as of the most recent delivery of financial statements pursuant to ~~this~~ Section ~~7.06(c~~5.01(a) ~~in excess of C$55,000,000 which are attributable to clause~~ or Section 5.01(b) (~~b) of the Available Amount~~provided that, the ~~Fixed Charge Coverage~~ Borrower’s Consolidated Leverage Ratio ~~(calculated~~ on a Pro Forma Basis, both immediately before and after such Restricted Payment, is not in excess of 4.50 to 1.00) or (ii) after the Alkali Transition Event has occurred, 1.5%, of Consolidated Net Tangible Assets as of the ~~last day~~ most recent delivery of financial statements pursuant to Section 5.01(a) or Section 5.01(b) (provided that, the ~~most recently ended Test Period~~ Borrower’s Consolidated Leverage Ratio on ~~or prior~~ a Pro Forma Basis, both immediately before and after such Restricted Payment, is not in excess of 5.00 to ~~the date~~ 1.00); provided that, with respect to each of ~~determination is greater than or equal to 2.00:1.00~~ clauses (a), (b), (c), (d) and (iie) ~~for all Restricted Payments made pursuant to this Section 7.06(c)~~ above, that no ~~Specified~~ Default ~~shall have~~ has occurred and be is continuing or would result therefrom; and (B) On or after the Investment Grade Date, ~~in each case the Borrower~~ it will not, and ~~the Restricted Subsidiaries may make Restricted Payments in an amount~~ will not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or permit any of its Restricted Subsidiaries ~~in connection with the death~~to, ~~disability~~declare or make, ~~retirement~~ or ~~termination of employment~~ agree to pay or ~~service of any such Person (~~make, directly or ~~a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability~~indirectly, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that wouldPayment, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default ~~shall have~~ has occurred and ~~be continuing~~ is continuing, or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Genesis Energy Lp)

Restricted Payments. ~~Declare~~ (a) The Company and its Restricted Subsidiaries will not declare or ~~make, directly or indirectly,~~ make any Restricted Payment, ~~except:~~except that (ai) ~~each~~ any Restricted Subsidiary may declare and make Restricted Payments to the ~~Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ Company or any other Restricted ~~Subsidiaries and to each other owner of Equity Interests of such~~ Subsidiary at any time; (ii) any Restricted Subsidiary ~~based~~ may pay dividends ratably to its shareholders (or on ~~their relative ownership interests of~~ a basis more favorable to the ~~relevant class of Equity Interests~~Company); (biii) the ~~Borrower and each~~ Company may declare or make any Restricted Payments payable solely in shares of its Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Redeemable Stock); (iv) the ~~Restricted Subsidiaries~~ Company may declare and make ~~dividend payments~~ additional Restricted Payments; provided that (x) no Event of Default or ~~other distributions payable solely~~ Default has occurred and is continuing or would result from such Restricted Payment, (y) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable four fiscal quarter period, the Company could Incur (as defined in the ~~Equity Interests~~ 2020-4.000% Indenture) at least $1.00 of additional Debt (~~other than Disqualified Equity Interests~~as defined in the 2020-4.000% Indenture) pursuant to Section 4.9(a) of the ~~Borrower;~~ 2020-4.000% Indenture, and (cz) ~~so long as immediately after~~ upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments declared or made by the Company pursuant to this clause (iv) on or after August 17, 2020 (other than pursuant to clauses (ii) and (iv) through (xi) of Section 10.11(b)), when combined with the sum of Specified Investments and Specified Subordinated Debt Prepayments, in each case, made on or after the Closing Date, does not exceed the Builder Basket Amount. (b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit: (i) ~~for all~~ payment of any dividend on Capital Stock of any class within 60 days after the declaration thereof, or redemption of any Subordinated Debt (as defined in the 2020-4.000% Indenture) within 30 days after giving notice of redemption thereof, if, on the date when the dividend was declared or such notice of redemption given, the Company or such Restricted ~~Payments made pursuant to~~ Subsidiary could have paid such dividend or redeemed such Subordinated Indebtedness in accordance with this Section ~~7.06(c~~10.11; (ii) repayment or refinancing of any Subordinated Debt with Permitted Refinancing Debt (as defined in ~~excess~~ the 2020-4.000% Indenture), or any Restricted Payment made in exchange for, by conversion into or out of ~~C$55,000,000 which are attributable~~ the net proceeds of the substantially concurrent sale (other than from or to ~~clause~~ a Subsidiary of the Company or from or to an employee stock ownership plan financed by loans from the Company or a Subsidiary of the Company) of shares of Capital Stock (bother than Redeemable Stock) of the ~~Available Amount,~~ Company; (iii) the ~~Fixed Charge Coverage Ratio~~ payment of dividends on the Company’s shares of Common Stock (~~calculated on~~ as defined in the 2020-4.000% Indenture) in the aggregate amount per fiscal year equal to $1.20 per share for each share of Common Stock (or any securities convertible into Common Stock to the extent they are entitled to such a ~~Pro Forma Basis~~dividend) of the Company outstanding as of the ~~last day~~ applicable record date for such dividends (as such $1.20 shall be adjusted for specified changes in the capitalization of the ~~most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company upon recapitalizations, reclassifications, stock splits, stock dividends, reverse stock splits, stock consolidations and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)similar transactions); (eiv) ~~redemptions, repurchases, retirements or other acquisitions~~ the acquisition of ~~Equity Interests~~ shares of Capital Stock in connection with (x) the ~~Borrower or any of the Restricted Subsidiaries deemed to occur upon~~ exercise of employee or director stock options or ~~warrants or similar~~ stock appreciation rights ~~if such Equity Interests represent~~ by way of cashless exercise and (y) the withholding of a portion of such Capital Stock to pay taxes associated therewith, and the ~~exercise price~~ purchase of ~~such options~~ fractional shares of Capital Stock of the Company or ~~warrants~~ any Restricted Subsidiary arising out of stock dividends, splits or ~~similar rights~~combinations or business combinations; (fv) the ~~Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case~~ acquisition of ~~any payment in respect of Equity Interests of any direct or indirect parent~~ shares of the ~~Borrower, the amount of such Restricted Payment is directly attributable~~ Company’s Capital Stock pursuant to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any equity repurchases from future, present or former ~~officers,~~ directors, ~~employees, members of management and consultants (~~officers or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) employees in an ~~aggregate amount after the First Amendment Effective Date, together with the aggregate~~ amount of ~~loans and advances~~ up to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any $10,000,000 per calendar year (~~it being understood that~~ and any ~~unused amounts~~ portion of such $10,000,000 not used in any calendar year may be carried ~~over~~ forward to the ~~immediately~~ next succeeding ~~three~~ calendar ~~years~~year)~~; provided that such amount~~ ; (vi) dividends on Redeemable Stock of the Company or a Restricted Subsidiary, or dividends on preferred stock of a Restricted Subsidiary, in ~~any calendar year may be increased by an amount not to exceed~~ each case incurred in compliance with Section 4.9 of the 2020-4.000% Indenture; (yvii) the payment of cash ~~proceeds received by the Borrower or any~~ in lieu of the ~~Restricted Subsidiaries from the sale~~ issuance of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof Capital Stock in connection with a the conversion, retirement, repurchase or redemption of ~~Equity Interests~~ any series of convertible debt securities of the ~~Borrower~~ Company or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; (iiviii) upon the ~~proceeds~~ occurrence of ~~which shall be used~~ a Change of Control (as defined in the 2020-4.000% Indenture) or an Asset Disposition (as defined in the 2020-4.000% Indenture) and after the completion of the Offer to ~~pay~~ Purchase under Section 4.10 or 4.13 of the 2020-4.000% Indenture (~~or make Restricted Payments to allow any direct or indirect parent thereof to pay~~including the purchase of all Notes (as defined in the 2020-4.000% Indenture) ~~franchise~~ tendered and ~~similar Taxes, and other fees and expenses,~~ required to ~~maintain its~~ be purchased), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Debt (~~or any~~ as defined in the 2020-4.000% Indenture) required under the terms thereof as a result of such ~~direct~~ Change of Control or ~~indirect parent’s~~Asset Disposition at a purchase or redemption price not to exceed 101% (in the case of a Change of Control) ~~corporate~~ or ~~legal existence~~100% (in the case of an Asset Disposition) of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided that, in the case of an Asset Disposition, such purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Debt does not exceed the Net Available Proceeds from such Asset Disposition; (iii) 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) such Persons shall, promptly 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 (2ix) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04)~~ payment of the ~~Person formed in order~~ deferred purchase price or earn-outs, including holdbacks (and the receipt of any corresponding consideration therefor), or payments with respect to ~~consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~fractional shares, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes case in connection ~~therewith~~ with an acquisition 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~~ payment would have been permitted ~~under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made~~ by the ~~Borrower or a Restricted Subsidiary)~~2020-4.000% Indenture at the time of such acquisition; (vix) Restricted Payments in an aggregate amount not to exceed $30,000,000 per calendar year so long as, after giving pro forma effect thereto, the ~~proceeds~~ Total Leverage Ratio (as defined in the 2020-4.0000% Indenture) of ~~which will be used~~ the Company would not exceed 3.25 to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons1.00; and (~~viii~~xi) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such other Restricted Payments in ~~respect of~~ an ~~Unrestricted Subsidiary shall be permitted only~~ aggregate amount not to exceed $50,000,000; provided, however, that at the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividendtime of, ~~split or combination thereof~~and after giving effect to, any ~~Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests;~~ Restricted Payment permitted under clauses (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), ~~including deemed repurchases in connection with the exercise of stock options~~ (iii), (v), (vi), (viii), (x) and ~~any cash payment in respect of amounts described in the foregoing clause~~ (~~ii); (j~~xi) ~~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~~otherwise occur as a consequence thereof. The amount of net proceeds from any exchange for, conversion into or sale of Capital Stock of the ~~Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not~~ Company pursuant to ~~exceed the greater of (i) C$50,000,000 and~~ clause (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section ~~7.06; provided that~~ 10.11(b) shall be excluded from the ~~making~~ calculation of ~~such Restricted Payment will reduce capacity~~ the amount available for Restricted Payments pursuant to ~~such other provision when so made; and~~Section 10.11(a)(iv). (rc) For purposes of determining compliance with the ~~First Amendment Transactions and~~ covenant set forth in this Section 10.11, if a Restricted Payment meets the criteria of more than one of the types of Restricted Payments ~~made~~ described in clauses (b)(i) through (b)(xi) of Section 10.11(b) or pursuant to ~~effect~~ Section 10.11(a), the ~~First Amendment Transactions~~ Company, in its sole discretion, may order and ~~pay fees~~ classify, and ~~expenses related~~ subsequently reorder and reclassify, such Restricted Payment in any manner in compliance with this Section 10.11. (d) For purposes of this Section 10.11, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued for purposes of this Section 10.11 will be determined by, in the case of amounts under $50,000,000, an Officer (as hereinafter defined) of the Company and, in the case of amounts greater than or equal to $50,000,000, the Board of Directors of the Company whose resolution with respect thereto will be delivered to the Agent. For purposes of this paragraph (~~including Restricted Payments made (A) to holders~~ d), “Officer” means any of ~~restricted stock~~ the following of the Company: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or ~~performance stock units as provided by~~ the ~~First Amendment Transaction~~ Secretary. 8. Section 10.14 of the Credit Agreement ~~and (B)~~ is hereby deleted in ~~order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~its entirety.

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~or incur any obligation (contingent or otherwise) to do so, except that: (a) each Restricted Subsidiary may make Restricted Payments to the US Borrower and to ~~the other~~ wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the US Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ Subsidiary and to each other owner of ~~Equity Interests~~ capital stock of such ~~Restricted~~ Subsidiary on a pro rata basis based on their relative ownership ~~interests of the relevant class of Equity Interests~~interests); (b) the US Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the ~~Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in~~ proceeds received from the ~~Equity Interests (other than Disqualified Equity Interests)~~ substantially concurrent issue of ~~the Borrower~~new shares of its common stock; (c) ~~so long as immediately after giving effect~~ the US Borrower may make Restricted Payments to ~~such Restricted Payment,~~ Holdings (i) ~~for all~~ (A) in an amount equal to the income taxes attributable to Holdings' Investment in the US Borrower and its Restricted ~~Payments made~~ Subsidiaries and other taxes attributable to the US Borrower and its Restricted Subsidiaries which are then due and payable and (B) in an amount up to $2,000,000 per calendar year to pay expenses, provided that such amounts shall reduce dollar-for-dollar the amounts permitted to be paid to Holdings pursuant to ~~this~~ Section ~~7.06(c~~7.02(j)(i) ~~in excess of C$55,000,000 which are attributable to clause~~ and (~~b) of the Available Amount~~ii), the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 respectively, and (ii) ~~for all~~ in an amount not in excess of the outstanding amount of loans previously made by the US Borrower to Holdings pursuant to Section 7.02(j) so long as the proceeds of such Restricted Payments ~~made pursuant~~ are substantially contemporaneously used by Holdings to ~~this Section 7.06(c~~repay such loans; (d) the US Borrower may make Restricted Payments to Holdings and the US Borrower and its Subsidiaries may make Restricted Payments in the form of Investments in Unrestricted Subsidiaries, provided that (i) no ~~Specified~~ Default or Event of Default shall have occurred and be continuing or would result therefrom~~, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not~~ ; (ii) after giving effect to ~~exceed the Available Amount immediately prior to the time of the making of~~ any such Restricted Payment; , the aggregate of all Restricted Payments made pursuant to this clause (d) on a cumulative basis (A) from the Effective Date through December 31, 2002 would not exceed the sum (without duplication) of (1) 50% of Adjusted Consolidated Net Income for any fiscal quarter after December 31, 2001 through December 31, 2002, and (2) $20,000,000 and (B) from January 1, 2003 would not exceed the sum (without duplication) of (1) 50% of Adjusted Consolidated Net Income for any fiscal quarter after December 31, 2002, and (2) $75,000,000 and; and (iii) and if Holdings has transferred 100% of the equity interests of the Borrower to a wholly-owned Subsidiary of Holdings and no Event of Default exists under Section 8.01(k), then the US Borrower may make any Restricted Payment to such wholly-owned Subsidiary to the extent ~~constituting Restricted Payments~~that, had such transfer not occurred, the US Borrower ~~and the~~ could have made such Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));Payment to Holdings; and (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) 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 US Borrower and ~~the~~ its Restricted Subsidiaries may make ~~additional~~ Restricted Payments in the form of Investments in Unrestricted Subsidiaries in addition to those permitted under clause (d) above in an ~~aggregate~~ amount ~~since~~ equal to all cash dividends, cash returns and the ~~First Amendment Effective Date~~ fair market value of other distributions received in respect of such Investments (not to exceed the ~~greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence~~ initial amount of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), Investments in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Revolving Credit Agreement (Libbey Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~except that: (a) each ~~Restricted~~ Subsidiary of the Borrower may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, according to their respective holdings of the ~~Borrower and to the other Restricted Subsidiaries (and,~~ type of Equity Interest in ~~the case~~ respect of a which such Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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)is being made; (b) ~~the Borrower~~ Holdings and each ~~of the Restricted Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in ~~the~~ Equity Interests (other than Disqualified Equity Interests) of such Person; (c) Holdings and each Subsidiary may make redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests, or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; (d) the Borrower may declare and make dividend payments in cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) or the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower; (ce) Holdings and its Subsidiaries may make additional Restricted Payments, so long as as, immediately before and after giving effect to such Restricted Payment, (i) ~~for all Restricted Payments made pursuant to this Section 7.06(c~~no Event of Default shall have occurred and be continuing and (ii) ~~in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated~~ on a Pro Forma ~~Basis)~~ Basis as of the last day of the most recently ended ~~Test~~ Measurement Period, Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 7.11 for the most recently completed Measurement Period on ~~or prior~~ a Pro Forma Basis; andprovided that, notwithstanding anything in this Agreement to the ~~date of determination is greater than or equal to 2.00:1.00 and (ii) for all~~ contrary, no Restricted Payments shall be made pursuant to this ~~Section 7.06(c~~clause (e) ~~no Specified Default shall have occurred and be continuing or would result therefrom, in each case~~ during the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~Covenant Relief Period; (df) to the extent constituting Restricted Payments, ~~the Borrower~~ Holdings and ~~the Restricted~~ its Subsidiaries may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of Section 7.02~~ Sections 7.03, 7.04, 7.05 or 7.08 (in each case, other than by reference to this Section ~~7.02(e) and 7.02(m~~7.06(f)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the ~~Borrower and the Restricted~~ Subsidiaries may make Restricted Payments to ~~any direct or indirect parent of~~ the Borrower, the Borrower may make Restricted Payments to Intermediate Holdings and Intermediate Holdings may make Restricted Payments to Holdings: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of ~~the Borrower and its Restricted Subsidiaries~~Holdings; (ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes,~~ taxes and other ~~fees~~ fees, taxes and ~~expenses,~~ expenses required to maintain its ~~(or any of such direct or indirect parent’s)~~ corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) 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 related to any equity or debt offering permitted by this Agreement (whether or not successful); (viv) the proceeds of which ~~(A)~~ shall be used to pay reasonable and customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection ~~therewith~~ therewith, in each case, to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (viv) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, ~~employment insurance, statutory pension plan,~~ withholding and other taxes payable ~~and other remittances to Governmental Authorities~~ in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any ~~Restricted~~ Subsidiary, be permitted ~~under~~ by this Agreement;; and (~~vii~~vi) the proceeds of which ~~shall~~ will be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii)~~ in consideration of withholding or similar taxes payable by any future, present or former ~~officer~~directors, ~~employee~~officers, ~~director~~employees, ~~member~~ managers, members of management and consultants of Holdings and its Subsidiaries or ~~consultant~~ any direct or indirect parent thereof (or ~~their respective estates~~any spouses, former spouses, domestic partners, former domestic partners, family members, successors, executors, administrators, heirs, ~~family members~~legatees or distributes of any of the foregoing, ~~legatees~~or any retirement accounts, ~~distributees~~trust, ~~spouses~~partnership, ~~former spouses~~limited liability company, ~~domestic partners~~ corporate body, or other entity established by such Person to hold and ~~former domestic partners~~Investment in the Borrower or any parent entity in connection with such Person’s estate or tax planning), including deemed repurchases in connection with the exercise of stock ~~options and any cash payment~~ options; provided that, in ~~respect~~ each case of ~~amounts described in the foregoing~~ this clause (iig); , (ji) ~~in addition to~~ the ~~foregoing~~ aggregate amount of Restricted Payments made under this clause (g) during any fiscal year shall not exceed (A) $7,000,000 for the fiscal year ending December 31, 2024, (B) $8,000,000 for the fiscal year ending December 31, 2025 and (C) $9,000,000 for the fiscal year ending December 31, 2026 and each fiscal year thereafter and (ii) so long as as, immediately before and after giving effect to such Restricted Payment, (i) no Foreign Lien TriggerSpecified Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) ~~1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated~~ on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) Basis as of the last day of the most recently ended ~~Test~~ Measurement Period, Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 7.11 for the most recently completed Measurement Period on ~~or prior~~ a Pro Forma Basis; provided, that, notwithstanding the foregoing, if Holdings and its Subsidiaries are unable to satisfy the ~~date of determination is less than or equal to 5.00:1.00;~~ conditionscondition set forth in the foregoing clauses (ki) ~~after~~ andclause (ii) (any such time that such conditions are not satisfied, a ~~Qualifying IPO~~“Restricted Period”), ~~the declaration and payment of dividends on the Borrower’s common stock (and~~ then Intermediate Holdings, the Borrower and ~~its restricted~~ their Subsidiaries ~~may pay dividends~~ shall be permitted to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for make Restricted Payments pursuant to this clause (g) in an aggregate amount not to exceed $500,000 during all Restricted Periods in any Fiscal Yearfiscal year (the “Restricted Period Cap”); provided that, for the avoidance of doubt, (x) any Restricted Payments under this clause (g) made during any period that is not a Restricted Period will not reduce the amount of the Restricted Period Cap available for future Restricted Periods in any Fiscal Yearfiscal year upon the occurrence thereof and (y) to the extent any Restricted Payments are made under this clause (g) and in compliance with the applicable condition set forth in clause (i) above during any period that is not a Restricted Period exceed the Restricted Period Cap (assuming such ~~other provision when so made~~cap would be applicable) such Restricted Payments shall, for all purposes under the Loan Documents, be deemed to have been permitted upon the occurrence of a Restricted Period.; provided further, for the avoidance of doubt, any Restricted Payments made pursuant to and in accordance with this clause (g) on or before the Second Amendment Effect Date are permitted under this clause (g); and (rh) redemptions, repurchases, retirements or other acquisitions of Equity Interest deemed to occur on the ~~First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders~~ exercise price of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)such options on a cashless basis.

Appears in 1 contract

Sources: Credit Agreement (Cambium Networks Corp)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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~~ its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the form of Equity Interests (other than Disqualified Equity Interests) of the ~~Borrower~~Borrower or, if to the Borrower or a Restricted Subsidiary, of any Restricted Subsidiary; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of ~~C$55,000,000 which are attributable to clause~~ the greater of (bx) $75,000,000 and (y) 3.75% of ~~the Available Amount~~Consolidated Tangible Assets (calculated on a Pro Forma Basis), the ~~Fixed Charge Coverage~~ Secured Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is ~~greater~~ less than or equal to ~~2.00:1.00~~ 3.50:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (d) to the extent constituting Restricted Payments, the Borrower and ~~the~~ its Restricted Subsidiaries may enter into and consummate transactions (and the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings to permit it to consummate transactions of the type) expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in Holdings, the Borrower or any of ~~the~~ its Restricted 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 warrants or similar rights; (f) the Borrower and ~~the~~ its Restricted Subsidiaries may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of ~~the Borrower~~Holdings, the amount of such Restricted Payment is directly attributable to the Equity Interests of ~~the Borrower~~ Holdings owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ Holdings (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of ~~management~~ management, independent contractors and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of ~~the Borrower~~ Holdings (or any direct or indirect parent of thereof), the ~~Borrower)~~ Borrower or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) or otherwise pursuant to any employee or director equity plan, employee or director stock option or profit interest plan in an aggregate amount after the ~~First Amendment Effective~~ Closing Date, together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$$35,000,000 and (x) ~~1.1~~2.0% of Consolidated ~~Total~~ Tangible Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (which shall be increased to the greater of (A) $50,000,000 and (B) 2.5% of Consolidated Tangible Assets after the consummation of a Qualifying IPO) (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding ~~three~~ calendar ~~years~~year); provided that such amount in any calendar year may be increased by an amount not to exceed (x) the amount of any cash bonuses or other compensation otherwise payable to such Person in return for the receipt of Equity Interests of Holdings or a direct or indirect parent thereof, the Borrower or any of its Restricted Subsidiaries, plus (y) the cash proceeds received by Holdings, the Borrower or any of ~~the~~ its Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or Specified Equity Contributions or amounts that increased the Available Amount) of ~~the Borrower~~ Holdings or any direct or indirect parent ~~of the Borrower~~ thereof (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of ~~the Borrower~~ Holdings or any of its Subsidiaries or any direct or indirect parent ~~of the Borrower~~ thereof that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of ~~the Borrower~~ Holdings or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of ~~the Borrower~~ Holdings or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments to Holdings or to any direct or indirect parent ~~of the Borrower~~thereof: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred in the ordinary course of business (including, following the consummation of a Qualifying IPO, Public Company Costs) 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay ~~customary~~ salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 ~~Section~~ Sections 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, ~~employment insurance, statutory pension plan,~~ withholding and other taxes payable ~~and other remittances to Governmental Authorities~~ in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for U.S. federal and/or applicable state or local income Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit ~~the common parent of~~ such ~~Tax Group~~ Persons to pay the portion of any U.S. federal, state or local income Tax (as applicable) of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Cincinnati Bell Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ its other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any of its other Restricted 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~~ its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 9.3) of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to Holdings to be used 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 ~~an amount not~~ each case, so long as, with respect to ~~exceed the Available Amount immediately prior~~ any such Restricted Payments made in order to pay or prepay principal in respect of such Indebtedness, such payment or prepayment would be permitted pursuant to Section 9.11 hereof (to the ~~time of~~ extent constituting Junior Financing) or Section 9.14 hereof if the ~~making of~~ Borrower was the direct obligor under such ~~Restricted Payment~~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 ~~7.02~~ 9.2 (other than Section ~~7.02(e) and 7.02(m~~9.2(e)), ~~Section 7.03, Section 7.04, Section 7.05~~ 9.4 (other than a merger or consolidation of Holdings and the Borrower) or 9.8 (other than Section ~~7.05(e)~~9.8(a) or ~~Section 7.08~~ (~~other than Section 7.08(i) and 7.08(m)(ii~~j)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement[reserved]; (g) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to Holdings (or to Parent and any other direct or indirect parent of ~~the Borrower:~~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 foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or Parent or any other direct or indirect parent of Holdings) 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; (ii) the proceeds of which shall be used to pay (or to make Restricted Payments to allow Parent or any direct ~~or indirect~~ parent ~~thereof~~ of Parent to pay) the operating costs and expenses of ~~such Persons~~ Holdings (or Parent or any other direct or indirect parent 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, attributable to the ownership or operations of the Borrower and its ~~Restricted~~ Subsidiaries; (iiiii) the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses required to maintain Holdings’ (or ~~make Restricted Payments to allow~~ Parent’s or any direct or indirect parent ~~thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any~~ of ~~such direct or indirect parent’s~~Holdings) corporate ~~or legal~~ existence; (~~iii~~iv) to finance any Investment permitted to be made pursuant to Section ~~7.02~~9.2; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) ~~such Persons~~ Parent, Holdings and the Borrower shall, ~~promptly~~ 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 (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section ~~7.04~~9.4) of the Person formed or acquired into the Borrower or a Restricted Subsidiary in order to consummate such ~~Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~Permitted Acquisition, in each case, in accordance with the requirements of ~~Section 6.12~~ Sections 8.11, 8.12 and ~~Section 7.02~~9.2; (ivv) the proceeds of which shall be used 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 (whether or not successful)~~Agreement; (vvi) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants of such Persons and any payroll, social security~~ Holdings (or ~~similar taxes in connection therewith~~ Parent) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under ~~Section 7.08(c)(i~~Sections 9.8(p) (but, in the case of this clause (B), ~~(e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but~~ only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); , or (viC) ~~the proceeds of which will~~ shall be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under ~~this Agreement;~~Section 9.8(h); and (vii) the proceeds of which shall be used to pay ~~cash, in lieu of issuing fractional shares, in connection with the exercise of warrants, options~~ withholding or other ~~securities convertible into~~ similar taxes payable upon repurchase, retirement or ~~exchangeable for~~ other acquisition or retirement of Equity Interests of ~~such Persons; and (viii) for any taxable period for which the Borrower and/or any of~~ Holdings, a Parent Entity or its Subsidiaries ~~are members of a consolidated~~or otherwise pursuant to any employee or director equity plan, ~~combined~~ employee or ~~similar income Tax group for Tax purposes of which a direct~~ director stock option or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower profits interest plan or any ~~of its Restricted Subsidiaries for such purpose~~other employee or director benefit plan or any agreement; (h) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted ~~Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Acquisition; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ [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 or and (ii) in consideration of withholding or similar ~~taxes~~ Taxes payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00options; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO[reserved]; (l) ~~Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied~~[reserved]; (m) the ~~distribution~~Borrower may (or may make Restricted Payments to permit any Parent Entity to) (i) redeem, ~~by dividend~~ repurchase, retire or ~~otherwise~~otherwise acquire in whole or in part any Equity Interests of the Borrower or any Restricted Subsidiary or any Equity Interests of any Parent Entity (“Treasury Equity Interests”), ~~of shares of capital stock of~~in exchange for, or ~~Indebtedness owed~~ with the proceeds (to the extent contributed to Holdings or the Borrower substantially concurrently) of the sale or issuance (other than to the Borrower or a any Restricted ~~Subsidiary by~~Subsidiary) of, ~~Unrestricted Subsidiaries~~ other Equity Interests or rights to acquire its Equity Interests (~~other than Unrestricted Subsidiaries, the primary assets~~ “Refunding Equity Interests”) and (ii) declare and pay dividends on any Treasury Equity Interests out of ~~which are cash and Cash Equivalents);~~any such proceeds; and (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests (other than Disqualified Equity Interests, except to the extent issued by the Borrower to a Restricted Subsidiary) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (other than Disqualified Equity Interests~~; provided that such new Equity Interests contain terms and provisions at least as advantageous~~ , except to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided extent issued by the ~~First Amendment Transaction Agreement and (B) in order~~ Borrower to ~~satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement~~a Restricted Subsidiary).

Appears in 1 contract

Sources: Credit Agreement (JOANN Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except~~: (a)~~ : each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of such a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower; (c) so long as immediately after giving effect~~ 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 ~~Payment,~~ Subsidiary based on their relative ownership interests of the relevant class of Equity Interests); Restricted Payments made (i) ~~for all Restricted Payments made pursuant~~ on the Closing Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the ~~Available Amount~~Transactions, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ in respect of working capital adjustments or purchase price adjustments pursuant to ~~this Section 7.06(c~~the Acquisition Agreement or the Split Brands Acquisition Agreement and (iii) ~~no Specified Default shall have occurred~~ in order to satisfy indemnity and ~~be continuing~~ other similar obligations under the Acquisition Agreement or ~~would result therefrom, in each case~~ the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(f) ~~and 7.08(m)(ii~~or 7.08(l))~~; (e) redemptions, repurchases, retirements or other acquisitions~~ ; repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of ~~the Restricted Subsidiaries~~ Holdings 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 ~~warrants or similar rights; (f)~~ warrants; the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or the Borrower or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) shall not to exceed ~~the greater of (w) C$~~$35,000,000 ~~and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $70,000,000 in any calendar ~~years~~year); ~~provided~~ provided, further, that such amount in any calendar year may further be increased by an amount not to ~~exceed~~ exceed: amounts used to increase the Cumulative Credit pursuant to clause (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amountd) of the ~~Borrower or any direct or indirect parent~~ definition of “Cumulative Credit”; the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided, further, that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant (or~~ of the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or any ~~Subsidiary thereof~~ of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; ; 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), (gx) the greater of $85,000,000110,000,000 and 30.0% of Consolidated EBITDA for the most recently ended Test Period, plus (y) the Cumulative Credit at such time; the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of the Borrower~~: (i) 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 ~~of such Persons~~ 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,~~ business and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries~~; (ii)~~ , 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 Borrower and its Restricted Subsidiaries; the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes~~taxes, and other fees and expenses, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~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 ~~legal existence;~~ 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 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; to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) 6.11; the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under ~~Section 7.08(c)(i),~~ Sections 7.08 (~~e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w~~i) and (yp) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)~~; (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding~~ ; and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used by Holdings to pay ~~cash~~(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; 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, director, manager or 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 ~~lieu of issuing fractional shares~~each case, in connection with the exercise of ~~warrants~~stock options; Holdings, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or any ~~exercise~~ vesting of ~~warrants, options or other securities convertible into or exchangeable for~~ Equity Interests~~; (i) redemptions, repurchases, retirements or other acquisitions~~ ; Restricted Payments in the amount 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options Excluded Contribution; and any ~~cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing~~ Restricted ~~Payments and~~ Payment, so long as (A) the Payment Condition shall be satisfied after giving effect to such Restricted Payment, (B) no ~~Event of~~ Default shall have occurred and be continuing or would result ~~therefrom~~from such Restricted Payment and (C) if requested by the Administrative Agent, the Borrower ~~and~~ shall have provided a certificate of a Responsible Officer of Borrower as to the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as satisfaction of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), conditions in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made foregoing clauses (A) ~~to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement~~ and (B~~) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement~~).

Appears in 1 contract

Sources: Abl Credit Agreement (Prestige Consumer Healthcare Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$~~55,000,000~~ 40,000,000 in the aggregate the Total Net55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge ~~Coverage~~ LeCoverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is ~~greater~~ lessgreater than or equal to ~~2.00:1.00~~ 5.252.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the ~~First~~ ClosingFirst Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$~~35,000,000~~ 15,000,00035,000,000 and (x) ~~1.1~~1.01.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to ~~5.00:1.00~~4.05.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% per annum of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) ~~the~~ [reserved];the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) ~~Restricted~~ [reserved];Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) ~~redemptions~~ [reserved];redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (GFL Environmental Holdings Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a ~~non~~Restricted Subsidiary that is not Wholly-~~Wholly~~ Owned by the Borrower or a Restricted Subsidiary, to the Borrower ~~and any other~~ or such Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount or amounts applied to incur Contribution Indebtedness), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(r) or Junior Financing Prepayments pursuant to Section 7.14(a)(ii) or to make previous Restricted Payments pursuant to this Section 7.06(c) ~~in excess of C$55,000,000 which are attributable~~ or to ~~clause (b) of~~ increase the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted PaymentCumulative Credit; (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 ~~Section~~ Sections 7.02(e) (with respect to Restricted Payments under this Section 7.06) and ~~7.02(m~~(n)), Section ~~7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)~~6.18(e); (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of clause (iv) below, to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ clause (iv) or (viii) below, no Specified Event of Default shall have occurred and be continuing or would result therefrom: (i) so long as the Borrower ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state, provincial or ~~any~~ local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which such a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated income tax return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (A) ~~to any future, present or former employee, officer, director, member~~ such taxes that would have been payable by the Borrower and its Subsidiaries as a stand-alone group and (B) the actual tax liability of ~~management or consultant~~ Holdings’ (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner~~ of any of ~~the foregoing) of the Borrower or any of its Subsidiaries or any~~ Holdings’ direct or indirect parent ~~of the Borrower that occurs after the Closing Date~~entity’s) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (A) its operating ~~costs and~~ expenses ~~of such Persons~~ 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, plus customary salary, bonus, severance and other benefits or claims payable to, and indemnities provided on behalf of, current or former directors, officers, managers, employees or consultants (or, solely with respect to benefits, any family member thereof) of any such parent company, to the extent such salary, bonuses, severance and other benefits, claims or indemnities 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 6.18(d) to the extent that the Borrower would be then permitted under such Section 6.18(d) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) its franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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 or former spouse), in an aggregate amount during any fiscal year not in excess of the greater of (x) $31,800,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period (which shall increase to the greater of (x) $44,500,000 and (y) 35.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period following a Qualifying Public Offering); provided that the Borrower may carry over and make in any subsequent fiscal years, in addition to the amount for such subsequent fiscal years, the amount not utilized in the prior fiscal 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, and (B) ~~corporate~~ 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 ~~legal existence~~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 parent companies that occurs after the Closing Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) to repurchase Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options, warrants, restricted stock units or similar investments; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering ~~permitted~~ by ~~this Agreement (whether~~ any direct or ~~not successful); (v) the proceeds~~ indirect parent of ~~which (A) shall be used to pay customary salary~~Holdings, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in ~~connection therewith to the extent such salaries, bonuses and other benefits are~~ each case directly attributable to the ~~ownership or operation~~ operations of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);Subsidiaries; and (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~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) 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 Section 7.06(f); provided that, immediately before and immediately after giving effect to any such Restricted Payment, no Specified Event of Default shall have occurred and be continuing; (g) after a Qualifying Public Offering, Restricted Payments per annum of up to the sum of (x) 6% of the Net Cash Proceeds contributed to the common equity of the Borrower from such Qualifying Public Offering and (y) 7% of the market capitalization of the Holdings or its direct or indirect listed parent; (h) [reserved]; (i) repurchases of Equity Interests of Holdings or any direct or indirect parent of Holdings to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee, director, manager or consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options; (j) so long as no Specified Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments in an aggregate amount not to exceed the greater of (x) $44,500,000 and (y) 35.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period, less amounts utilized in respect of this clause (j) for Investments under Section 7.02(o) and for Junior Financing Prepayments under Section 7.14(a)(iv); (k) Restricted Payments, so long as, after giving effect on a Pro Forma Basis to any such Restricted Payment, (x) no Specified Event of Default shall have occurred and be continuing or would result therefrom and (y) the Total Net Leverage Ratio most recently ended Test Period does not as of the date of determination exceed 3.50:1.00; (l) Restricted Payments to any direct or indirect parent entity to make cash payments in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeentity; (hm) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may ~~pay cash~~ repurchase (or make Restricted Payments to any direct or indirect parent ~~the proceeds of which shall be used~~ entity to enable it to ~~pay cash~~repurchase) ~~in lieu of fractional~~ Equity Interests ~~in connection with any dividend, split or combination thereof, any Permitted Acquisition or any~~ upon the exercise of ~~warrants,~~ options or warrants or other securities convertible into or exchangeable for Equity ~~Interests; (i) redemptions, repurchases, retirements or other acquisitions of~~ Interests if such Equity Interests ~~(i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction~~ represent all or a portion of the exercise price of such options or ~~(ii) in consideration~~ warrants or other securities as part of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii)a “cashless” exercise; (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (mn) the distribution, by dividend or otherwise, of ~~shares of capital stock~~ the Equity Interests of, or Indebtedness owed to the Borrower or a any of its Restricted ~~Subsidiary~~ Subsidiaries by, Unrestricted Subsidiaries (other than Unrestricted ~~Subsidiaries,~~ Subsidiaries the ~~primary~~ assets of which are solely comprised of cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.[reserved]; (p) ~~the Original Transaction and Restricted Payments made to effect the Original Transaction~~[reserved]; (q) [reserved]; and (r) the ~~making of~~ Borrower or any Restricted ~~Payment~~ Subsidiary may pay any dividend or consummate any redemption within sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration ~~such Restricted Payment~~ or notice, the dividend or redemption notice would have complied with ~~another provision of this Section 7.06; provided that~~ the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)provisions hereof.

Appears in 1 contract

Sources: First Lien Credit Agreement (TGPX Holdings I LLC)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted ~~Subsidiary~~Subsidiary with respect to any class or type of Equity Interests, to (i) the Borrower or such Restricted Subsidiary and ~~any other Restricted Subsidiaries 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 Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments ~~in an amount not~~ necessary to ~~exceed~~ consummate the ~~Available Amount immediately prior to the time of the making of such Restricted Payment~~Transactions; (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 (other than Section 7.02(e) and ~~7.02(m~~(l)), Section ~~7.03, Section~~ 7.04, or Section 7.05 (other than Section 7.05(e)~~) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)~~); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to ~~any direct or indirect parent of the Borrower~~Holdings: (i) the proceeds of which ~~shall~~ will be used by Holdings to pay (or to make ~~Restricted Payments~~ a payment to ~~allow~~ any direct or indirect parent ~~thereof~~ of Holdings to enable it to pay) ~~operating costs and expenses~~ the Tax liability for each relevant jurisdiction in respect of returns filed by or on behalf of Holdings or any direct or indirect parent thereof; provided that such proceeds are limited to the portion of such ~~Persons~~ Tax liability attributable to the income of the Borrower and/or its applicable Subsidiaries, determined as if the Borrower and/or its applicable Subsidiaries were required to pay such Tax liability as a separate consolidated, combined, unitary or affiliated group, and reduced by any portion of such Taxes directly paid by Borrower or any of its Subsidiaries; 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 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) (A) such entities’ 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, plus any reasonable and customary indemnification claims made by directors or officers of Holdings or any direct or indirect parent thereof, in each case to the extent attributable to the ownership or operations of Holdings, the Borrower and its Restricted ~~Subsidiaries~~Subsidiaries and (B) Public Company Costs; (iiiii) the proceeds of which shall be used by Holdings to pay (or to make ~~Restricted Payments~~ a payment to ~~allow~~ 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) if no Default or Event of Default shall have occurred and be continuing or would result therefrom, 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) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof ~~to pay) franchise and similar Taxes~~held by any future, ~~and other fees and expenses~~present or former employee, ~~required to maintain~~ 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), in an aggregate amount (other than cash payments funded with the proceeds of any “key-man” life insurance policy received by the Borrower in connection with the death of any management shareholder), not to exceed $1,000,000 (which purchase may be paid by the issuance of Indebtedness permitted by Section 7.03(t)) in any fiscal year (however, any Restricted Payments permitted to be made (but not made) pursuant to this clause (iv) in a given fiscal year may be carried forward and made in the next two succeeding fiscal years (but not any fiscal year after such two succeeding fiscal years, and which, if carried over, will be deemed to be utilized after the base amount attributable to such fiscal years into which it has been carried over)); (v) the proceeds of which shall be used by Holdings to finance (or to make a Restricted Payment to any direct or indirect ~~parent’s~~parent of Holdings to finance) ~~corporate or legal existence; (iii) 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 or consummation of such Investment and (B) ~~such Persons~~ Holdings or the applicable parent company thereof shall, ~~promptly~~ immediately following the closing or consummation thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a ~~Restricted Subsidiary~~ Loan Party other than Holdings (or a Person that will become a Loan Party (other than Holdings) upon receipt of such contribution) or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or a Loan Party (other than Holdings) in order to consummate such ~~Investment or acquired pursuant to such Investment~~Permitted Acquisition, ~~as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary,~~ and in each case, ~~in accordance~~ comply with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)6.12; (vi) the proceeds of which ~~will~~ shall be used by Holdings to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons (or to make a Restricted Payment to any ~~other payment that would, if made by the Borrower~~ direct or ~~any Restricted Subsidiary, be permitted under this Agreement; (vii~~indirect parent of Holdings to enable it to make) ~~the proceeds of which shall be used to pay cash,~~ cash payments in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of ~~such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined~~ Holdings or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to 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 Borrower (or any authorized committee thereof)); (vii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted Payment to any direct or indirect parent of Holdings to enable it to ~~pay cash~~pay) ~~in lieu of fractional Equity Interests in connection with~~ fees and expenses (other than to Affiliates) related to any ~~dividend, split~~ unsuccessful equity or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction debt offering of the ~~exercise price~~ Borrower not prohibited by this Agreement (in the case of any such ~~options~~ parent or ~~(ii) in consideration of withholding~~ indirect parent, only to the extent such parent or ~~similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (~~indirect parent does not hold material assets other than those relating to the Borrower and its Subsidiaries or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (iibusinesses); (jviii) ~~in addition~~ the proceeds of which shall be used by Holdings to pay (or to make a Restricted 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 ~~foregoing~~ extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and its Restricted ~~Payments~~ Subsidiaries; and (ix) the proceeds of which shall be used by Holdings to pay (or to make a Restricted 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(h), 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 the Borrower or its Restricted Subsidiaries 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 Borrower ~~and the Restricted Subsidiaries~~ may make ~~additional~~ Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ that does not to exceed the greater of (x) $20,000,000 and (y) 4.5% of Total Assets as of the end of the Test Period last ended (in each case, such amount to be reduced on a dollar-for-dollar basis by any use of this Section 7.06(f)(i) reallocated to prepayments, redemptions, purchases, defeasances or other satisfactions of Junior Financings pursuant to Section 7.13(i)); (g) cashless repurchases of Equity Interests in Holdings (or any direct or indirect parent company), 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; (h) payments made by the Borrower or any Restricted Subsidiary in respect of withholding or similar Taxes in connection with the exercise of stock options with respect to the Equity Interests which are the subject of the Initial Public Offering, payable by any future, present or former officers, directors, members of management, consultants and employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (or any spouse, former spouse, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of such Equity Interests in consideration of such payments including deemed repurchases; (i) ~~C$50,000,000~~ so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, additional Restricted Payments so long as (iix) ~~1.5% of Consolidated Total Assets determined~~ at the time of ~~incurrence of~~ making such ~~Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of~~ Restricted Payment, the Total ~~Net~~ Leverage Ratio ~~(calculated~~ does not exceed 2.00:1.00 on a Pro Forma ~~Basis~~Basis and (y) ~~as of the last day of the most recently ended Test Period on or prior~~ Liquidity after giving effect to ~~the date of determination~~ such Restricted Payment is not less than ~~or equal to 5.00:1.00;~~$20,000,000; and (kj) ~~after a Qualifying IPO~~so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the declaration and payment of dividends and distributions on the Borrower’s common stock (~~and~~ or the ~~Borrower and its restricted Subsidiaries may pay~~ payment of dividends to any direct or indirect parent entity of ~~its parents~~ the Borrower to ~~permit~~ fund a payment of dividends on such ~~parent to pay such dividends), in the aggregate in any calendar year~~ entity’s common stock) of up to ~~the sum of (i) 6.00~~6% per annum of the ~~Net Cash Proceeds~~ net cash proceeds received by or contributed to the Borrower ~~or a Restricted Subsidiary in or~~ from ~~any such Qualifying IPO and (ii) 6.00% of~~ the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsInitial Public Offering. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Fogo De Chao, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower or any other Loan Party and ~~to the~~ any other ~~Restricted Subsidiaries (and,~~ Person that owns a direct Equity Interest in ~~the case of a Restricted Payment by a non-Wholly Owned~~ such Restricted Subsidiary, ratably according to their respective holdings of the ~~Borrower and any other Restricted Subsidiaries and to each other owner~~ type of Equity ~~Interests~~ Interest in respect of which such Restricted ~~Subsidiary based on their relative ownership interests of the relevant class of Equity Interests)~~Payment is being made; (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the common or subordinated Equity Interests ~~(other than Disqualified Equity Interests)~~ of ~~the Borrower~~such Person; (c) ~~so long as~~ the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common or subordinated Equity Interests with the proceeds received from the substantially concurrent issue of new common or subordinated Equity Interests; (d) prior to the IPO Closing Date, the Borrower may make Restricted Payments with respect to any fiscal quarter in an aggregate amount not to exceed Available Cash with respect to such fiscal quarter; provided that immediately after giving effect to such Restricted ~~Payment~~Payment and any Indebtedness incurred in connection therewith, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma ~~Basis~~Basis (i) the Consolidated Total Leverage Ratio shall not exceed (x) 4.00 to 1.00 for the fiscal quarter ending December 31, 2013, (y) 3.75 to 1.00 for the fiscal quarter ending March 31, 2014, and (z) 3.50 to 1.00 for each fiscal quarter ending thereafter, (ii) the Loan Parties shall have Liquidity of at least $25,000,000 and (iii) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the other covenants set forth in Section 7.11, 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 pursuant to Section 6.01(a) or (b) as though such Restricted Payment had been made, and any applicable Indebtedness incurred, as of the ~~last~~ first day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))fiscal period covered thereby; (e) ~~redemptions~~on and after the IPO Closing Date, ~~repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or may make Restricted Payments with respect to any fiscal quarter in an aggregate amount not to exceed Available Cash with respect to such fiscal quarter; provided that immediately after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with all of the ~~Restricted Subsidiaries deemed~~ covenants set forth in Section 7.11, such compliance to ~~occur upon exercise of stock options or warrants or similar rights if such Equity Interests represent a portion~~ be determined on the basis of the ~~exercise price~~ financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such Restricted Payment had been made, and any applicable Indebtedness incurred, as of ~~such options or warrants or similar rights~~the first day of the fiscal period covered thereby; (f) on the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the IPO Closing Date, ~~plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1)~~ the Borrower may ~~elect~~ declare and pay a cash dividend to ~~apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing~~ its equity holders existing immediately prior to giving effect to the ~~Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant~~ IPO (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of “Permitted Equity ~~Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement~~Distribution”); (g) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to ~~any direct~~ holders of convertible Indebtedness permitted pursuant to Section 7.02(j), payable solely in the common or ~~indirect parent~~ subordinated Equity Interests of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) Restricted Payments may be made in the form of accepting forfeitures or holding back any portion of the underlying Equity Interests of the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the cashless exercise of ~~stock options~~ options, warrants, conversion and ~~any cash payment in~~ other rights or tax withholding with respect ~~of amounts described in the foregoing clause (ii); (j) in addition~~ to the ~~foregoing Restricted Payments and so long as no Event~~ exercise of ~~Default shall have occurred and be continuing or would result therefrom~~equity based awards under employee equity incentive compensation programs of the Borrower, ~~the Borrower and~~ the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOGP; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (JP Energy Partners LP)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of such a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made pursuant~~ on the Closing Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the ~~Available Amount~~Transactions, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ in respect of working capital adjustments or purchase price adjustments pursuant to ~~this Section 7.06(c~~the Acquisition Agreement or the Split Brands Acquisition Agreement and (iii) ~~no Specified Default shall have occurred~~ in order to satisfy indemnity and ~~be continuing~~ other similar obligations under the Acquisition Agreement or ~~would result therefrom, in each case~~ the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~Split Brands Acquisition Agreement; (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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(f) ~~and 7.08(m)(ii~~or 7.08(l)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of ~~the Restricted Subsidiaries~~ Holdings 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 ~~warrants or similar rights~~warrants; (f) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or the Borrower or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $3035,000,000 in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $6070,000,000 in any calendar ~~years~~year); provided further that such amount in any calendar year may further be increased by an amount not to ~~exceed~~ exceed: (yA) amounts used to increase the ~~cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests~~ Cumulative Credit pursuant to clauses (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount~~c) and (d) of the ~~Borrower or any direct or indirect parent~~ definition of ~~the Borrower~~ “Cumulative Credit”; (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (zB) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; ~~provided, further,~~ and provided further that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant (or~~ of the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or any ~~Subsidiary thereof~~ of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) 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) $7085,000,000, plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted Payment made pursuant to clause (y) above (I) no Default has occurred and is continuing or would result therefrom and (II) if (A)such Restricted Payment is being made in reliance on either clause (a) or (b) of the definition of Cumulative Credit, the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.5075 to 1.00 and (B) the Secured Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.754.00 to 1.00, the Cumulative Credit at such time; provided, that with respect to any Restricted ~~Subsidiaries~~ 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) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Term Loan Credit Agreement (Prestige Brands Holdings, 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) ~~each Restricted Subsidiary~~ the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Borrower and ~~to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted~~ its 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (cd) so long as no Default has occurred and is continuing or would result therefrom, then (i) at any time when the Consolidated Total Leverage Ratio is less than 3.00 to 1.00 (both immediately before and immediately after ~~giving effect to~~ the making of such Restricted Payment) the Borrower may make Restricted Payments without limitation, (iii) ~~for~~ at any time when the Consolidated Total Leverage Ratio is less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00 (both immediately before and immediately after the making of such Restricted Payment) the Borrower may make Restricted Payments which, when aggregated with all other Restricted Payments made pursuant to this Section ~~7.06(c~~6.04(d) ~~in excess of C$55,000,000 which are attributable~~ during the then current calendar year do not exceed $40,000,000, (iii) at any time when the Consolidated Total Leverage Ratio is less than 5.00 to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is 1.00 but greater than or equal to ~~2.00:1.00~~ 4.00 to 1.00 (both immediately before and ~~(ii~~immediately after the making of such Restricted Payment) ~~for~~ the Borrower may make Restricted Payments which, when aggregated with all other Restricted Payments made pursuant to this Section ~~7.06(c~~6.04(d) ~~no Specified Default shall have occurred~~ during the then current calendar year do not exceed $30,000,000 and ~~be continuing~~ (iv) at any time when the Consolidated Total Leverage Ratio is greater than or ~~would result therefrom, in each case the Borrower~~ equal to 5.00 to 1.00 (both immediately before and ~~the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount~~ immediately ~~prior to the time of~~ after the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower ~~and the Restricted Subsidiaries~~ may ~~pay (or~~ make Restricted Payments which, when aggregated with all other Restricted Payments made pursuant to ~~allow any direct or indirect parent thereof to pay, so long as~~ this Section 6.04(d) during the then current calendar year do not exceed $20,000,000; provided that in the case of Section (d)(i), (d)(ii), (d)(iii) or (d)(iv), the Borrower shall have delivered to the Administrative Agent and each Lender a certificate satisfactory in form and substance to the Administrative Agent and executed by its chief financial officer or treasurer evidencing compliance with the requirements of such Section and in no event shall the Borrower make a Restricted Payment in violation of the terms of any ~~payment~~ Material Indebtedness. Notwithstanding clause (b) of this Section 6.04, other than in connection with the Permitted Transactions, a Foreign Credit Party may not pay any dividend to an External Subsidiary unless (x) such dividend is substantially contemporaneously therewith directly or indirectly remitted as a dividend or distribution to a Domestic Credit Party, (y) such dividend is in the form of an intercompany note payable of such Foreign Credit Party which is subordinated on terms satisfactory to the Administrative Agent to the obligations of such Foreign Credit Party under the Credit Documents (a “Dividend Note”) or (z) at the time such dividend is paid no Default has occurred and is continuing and, after giving effect to such dividend, the “Outflow Amount” (as defined below) does not exceed $50,000,000. For purposes hereof, “Outflow Amount” means an amount equal to (1) the aggregate amount of (A) all dividends paid by Foreign Credit Parties to External Subsidiaries after May 13, 2011 other than as permitted by subsection (x) or (y) of the preceding sentence plus (B) all amounts (including principal, interest and other amounts) paid by Foreign Credit Parties to non-Credit Parties after May 13, 2011 in respect of ~~Equity Interests~~ Dividend Notes (other than such amounts substantially contemporaneously therewith directly or indirectly remitted as a dividend or distribution to a Domestic Credit Party) minus (2) the amount of ~~any direct or indirect parent~~ all cash capital contributions received by such paying Foreign Credit Parties from External Subsidiaries after May 13, 2011. Payments (including principal, interest and other amounts) on account of ~~the Borrower,~~ Dividend Notes shall only be made if a dividend in the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) to finance any Investment permitted to payment could then be made pursuant to ~~Section 7.02; provided that~~ subsection (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04z) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision second sentence of this Section ~~7.06~~6.04; provided that the ~~making of such Restricted Payment will reduce capacity for Restricted Payments pursuant~~ foregoing restriction shall not apply to such ~~other provision when so made; and (r)~~ payments to the ~~First Amendment Transactions and Restricted Payments~~ extent they are either made to ~~effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A)~~ a Credit Party or are substantially contemporaneously therewith directly or indirectly remitted as a dividend or a distribution to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)a Domestic Credit Party.

Appears in 1 contract

Sources: Credit Agreement (Manitowoc Co Inc)

Restricted Payments. ~~Declare or make~~Neither the Borrowers nor any Restricted Subsidiary shall at any time, directly or indirectly, declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except~~: (a)~~ : each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Company, any of the Company’s Subsidiaries that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the ~~other~~ type of Equity Interest in respect of which such Restricted ~~Subsidiaries~~ Payment is being made (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the ~~Borrower~~ Borrowers and ~~any other~~ their Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests and to the extent required under the Organizational Documents of any non-wholly owned Restricted Subsidiary, based on the ~~relevant class of Equity Interests~~formulation required in such Organizational Documents)~~; (b)~~ ; the ~~Borrower~~ Company and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; the Company may pay any dividend within 60 days after the date of the declaration thereof if at the date of such declaration or notice, the payment of such dividend would have complied with the provisions of this Section 8.07; a Restricted Subsidiary may issue Equity Interests to the extent constituting an Asset Sale permitted by Section 8.01 or Investment permitted by Section 8.06 (other than ~~Disqualified~~ Section 8.06(o)); a Restricted Subsidiary may issue Equity ~~Interests)~~ Interests in additional, newly formed Restricted Subsidiaries; the Company and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed the greater of ~~the Borrower; (c) so long as immediately after giving effect to such Restricted Payment,~~ (i) $100,000,000 and (ii) 5.0% of Borrower Group EBITDA for ~~all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ the ~~Available Amount, the Fixed Charge Coverage Ratio~~ most recently ended Test Period (calculated on a Pro Forma Basis) as at the time of declaration or notice of such Restricted Payment; the ~~last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company and ~~(ii) for all~~ its Restricted Subsidiaries may make Restricted Payments ~~made pursuant~~ from and after the Closing Date in an aggregate amount not to exceed the Available Amount at the time of declaration or notice of such Restricted Payment that the Company elects to apply to this Section ~~7.06(c~~8.07(g), such election to be specified in a written notice (which may be the Compliance Certificate) of a Responsible Officer calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no ~~Specified~~ Default or Event of Default shall have occurred and be continuing or would result therefrom; the Company and its Restricted Subsidiaries may make additional Restricted Payments; provided that at the time of declaration or notice of such Restricted Payments, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Rent-Adjusted Total Net Leverage Ratio shall not exceed 5.00 to 1.00 calculated on a Pro Forma Basis as of the end of the most recently ended Test Period; the Borrowers may make Restricted Payments on the Closing Date pursuant to or in ~~each case~~ connection with the ~~Borrower~~ Transactions; the Company and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in connection with the payment of amounts necessary to repurchase Indebtedness or Equity Interests of the Borrowers or any Subsidiary to the extent required by any Gaming Authority having jurisdiction over the Borrowers or any Subsidiary in order to avoid the License Revocation, suspension, or denial of a Gaming License by that Gaming Authority; provided that after giving effect to any such Restricted Payments, at the time of declaration or notice thereof, the Company and its Restricted Subsidiaries are in compliance with Section 8.12 determined on a Pro Forma Basis as of the end of the most recently ended Test Period (provided that if there is an Early Covenant Relief Termination, each of Sections 8.12(a) and (b) shall be tested in accordance with the proviso to such Section); provided, further, that, in the case of any such repurchase of Equity Interests of the Borrowers or any Subsidiary, if such efforts do not jeopardize any Gaming License, the Borrowers or any such Subsidiary will have previously attempted to find a suitable purchaser for such Equity Interests and no suitable purchaser acceptable to the applicable Gaming Authority was willing to purchase such Equity Interests on terms acceptable to the holder thereof within a time period acceptable to such Gaming Authority; the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (i) the principal amount of such Convertible Debt plus (ii) any payments received by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction; any payments in connection with (i) a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (A) by delivery of shares of Company’s common stock upon settlement thereof or (B) by (1) set-off against the related Permitted Bond Hedge Transaction or (2) payment of an early termination amount thereof in common stock upon any early termination thereof; the Company and its Restricted Subsidiaries may make Restricted Payments in connection with any prepayment, purchase or redemption of minority interests in MGM National Harbor, LLC, MGM Springfield Blue Tarp, Detroit and any other Designated Restricted Entity in an aggregate amount not to exceed ~~the Available Amount immediately prior to~~ $50,000,000 at the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) declaration or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions~~ notice thereof; non-cash repurchases of Equity Interests ~~in the Borrower or any of the Restricted Subsidiaries~~ deemed to occur upon exercise of stock options or warrants or ~~similar rights~~ the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of such options or ~~warrants or similar rights; (f) the Borrower~~ warrants; and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management Company and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to in connection with any ~~direct~~ tender offer, redemption or ~~indirect parent~~ other purchase of Equity Interests of the ~~Borrower:~~ Company in an aggregate amount not to exceed $1,000,000,000.; provided that during the period from the First Amendment Effective Date until the later of (i) the ~~proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs~~ Covenant Relief Period Termination Date and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; (ii) the ~~proceeds~~ first date on which the Rent-Adjusted Total Net Leverage Ratio is equal to or less than 6.00 to 1.00 calculated on a Pro Forma Basis as of ~~which~~ the end of the most recently ended Test Period, neither the Borrowers nor any Restricted Subsidiary shall ~~be used to pay (~~at any time, directly or indirectly, declare or make any Restricted ~~Payments to allow~~ Payment, or incur any ~~direct~~ obligation (contingent or ~~indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii~~otherwise) to ~~finance any Investment~~ do so, otherwise permitted to be made pursuant to ~~Section 7.02; provided that~~ the foregoing clauses (Aa) ~~such Restricted Payment shall be made substantially concurrently with the closing of such Investment and~~ through (Bo) ~~such Persons shall, promptly following the closing thereof, cause~~ except (1x) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to ~~such Investment~~clause (a), ~~as applicable~~(b), ~~into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02;~~ (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(ic), (e), (~~g), (h~~i), (j), (k), (l~~), (m), (n), (o), (p), (r), (t), (w~~) and (n) above or (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as in excess of the ~~last day~~ Specified Restricted Payment Amount. For purposes of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends)determining compliance with this Section 8.07, in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided event that the making of (including the declaration thereof) any Restricted Payment (or any portion thereof), other than a Restricted Payment made pursuant to Section 8.07(g), meets the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (n) above, the Company may, in its sole discretion, divide, classify or reclassify such Restricted Payment ~~will reduce capacity for~~ (or any portion thereof) at the time such Restricted ~~Payments pursuant to such other provision when so made; and~~ Payment (ror any portion thereof) ~~the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments~~ is made (Aor declared) under any clause under which it would then be permitted to ~~holders~~ be made (or declared) at such time, and at any future time may divide, classify or reclassify such Restricted Payment (or any portion thereof) under any clause under which it would be permitted to be made (or declared) at such later time, and in each case will only be required to include the amount and type of ~~restricted stock~~ such Restricted Payment in one or ~~performance stock units as provided by~~ more of the ~~First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)~~above clauses.

Appears in 1 contract

Sources: Credit Agreement (MGM Resorts International)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the~~ other Restricted Subsidiaries that directly or indirectly own Equity Interests of such Restricted Subsidiary (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any such other Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments in an amount not to exceed the ~~Available Amount immediately prior~~ Net Cash Proceeds of any Excluded Contribution Not Otherwise Applied, so long as, with respect to any such Restricted Payments, (A) such Restricted Payment is made within 180 days after such Excluded Contribution is made or (B) no Event of Default shall have occurred and be continuing or would result therefrom (or, in the ~~time~~ case of a Restricted Payment being made in connection with a Limited Condition Acquisition, no Event of Default exists as of the ~~making of~~ date the definitive acquisition agreements for such ~~Restricted Payment~~Limited Condition Acquisition are entered into); (d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may ~~enter into and consummate transactions~~ take actions expressly permitted by ~~any provision of~~ Section 7.02 (other than Section 7.02(e~~) and 7.02(m~~)), ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.12; (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any ~~direct or indirect parent of the Borrower~~Parent Holding Company: (i) the proceeds of which ~~shall~~ will be used to pay the income taxes and franchise (and similar) taxes (including minimum taxes) imposed in lieu of income taxes of a Parent Holding Company attributable to the Borrower and its Subsidiaries in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of such Parent Holding Company that include the Borrower and its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately; provided that Restricted Payments under this Section 7.06(e)(i) shall not exceed the income tax liability of the consolidated, combined, unitary or affiliated group that would consist solely of the Borrower and its Subsidiaries; (ii) the proceeds of which shall be used by such Parent Holding Company to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any direct~~ or ~~indirect parent thereof~~ Investment in a Parent Holding Company to enable it or another Parent Holding Company to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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, plus any reasonable and customary indemnification claims made by directors, officers or employees of any Parent Holding Company, in each case attributable to the operations or ownership ~~or operations~~ of the Borrower and its Subsidiaries or (b) the fees and other amounts described in Sections 7.08(e) to the extent that the Borrower or any Restricted ~~Subsidiaries~~Subsidiary would be then permitted under such Sections 7.08(e) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by such Parent Holding Company to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any direct~~ or ~~indirect parent thereof~~ an Investment in a Parent Holding Company to enable it or another Parent Holding Company to pay) (x) franchise taxes and ~~similar Taxes~~(y) other taxes imposed on a separate company basis with respect to the Borrower and its Subsidiaries; (iv) the proceeds of which will be used to repurchase, retire or otherwise acquire the Equity Interests of the Borrower (or to make a Restricted Payment to or an Investment in a Parent Holding Company to enable it or another Parent Holding Company to repurchase, retire or otherwise acquire its Equity Interests) from directors, officers, employees or members of management, consultants or independent contractors of the Borrower, any Subsidiary, any Parent Holding Company or any Related License Corporation (or their estate, heirs, family members, spouse and/or former spouse), in each case in connection with the resignation, termination, death or disability of any such directors, officers, employees or members of management, consultants or independent contractors or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements, partnership agreement or equity holders’ agreement in an aggregate amount, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement, partnership agreement or equity holders’ agreement not to exceed for any fiscal year of the Borrower, together with any repurchase of Equity Interests made pursuant to Section 7.06(l)(ii) in such fiscal year, $15,000,000; 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 a Parent Holding Company (to the extent contributed to the Borrower), the Borrower or any Restricted Subsidiary (solely with respect to the calendar year in which such proceeds are received and ~~other fees~~ without limiting any carry-over thereof permitted above), plus (B) to the extent contributed in cash to the common equity of the Borrower and ~~expenses~~not theretofore utilized to make a Restricted Payment under this Section 7.06(e)(iv), ~~required~~ the Net Proceeds from the sale of Equity Interests of any Parent Holding Company, in each case to ~~maintain its (~~members of management, managers, directors, consultants or independent contractors of the Borrower or any of its Subsidiaries or any Parent Holding Company that occurs after the Closing Date, plus (C) the amount of any cash bonuses otherwise payable to any future, present or former, director, employee or consultant of the Borrower, any Parent Holding Company, any Related License Corporation or any of their Restricted Subsidiaries that are in respect of services rendered to the Borrower and its Restricted Subsidiaries and foregone in return for the receipt of Equity Interests of the Borrower, any Parent Holding Company or any of their Restricted Subsidiaries pursuant to a deferred compensation plan of such ~~direct or indirect parent’s~~entity (provided that in no event shall any such contributed amounts set forth in clause (B) ~~corporate or legal existence~~that are so utilized increase the Cumulative Credit); (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by any ~~Investment~~ 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; provided that if such purchase or other acquisition had been made by the Borrower or any Restricted Subsidiary, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section ~~7.02~~7.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such ~~Investment~~ purchase or other acquisition and (B) ~~such Persons~~ any Parent Holding Company shall, ~~promptly following~~ substantially concurrently with the closing thereof, cause (1) all ~~property~~ Property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to the ~~Borrower~~ Borrower, any other Loan Party or a (to the extent permitted by Section 7.02(i)) any Restricted Subsidiary or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) into the Borrower, any other Loan Party or (to the extent permitted by Section 7.02(i)) any Restricted Subsidiary of the Person formed or acquired in order to consummate such ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) [Reserved]; (vii) the proceeds of which shall be used by the Borrower to pay, or to allow any Parent Holding Company to pay, a portion (which shall not exceed the Borrower’s and its Subsidiaries’ ratable portion of the consolidated assets of such Parent Holding Company) of any customary fees and expenses related to any unsuccessful equity offering by any Parent Holding Company, or offering or debt issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement; and (viii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to, and indemnities provided on behalf of, directors,~~ to officers, employees, ~~members~~ consultants and independent contractors of ~~management and consultants of such Persons and~~ any ~~payroll, social security or similar taxes in connection therewith~~ Parent Holding Company 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (jf) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, together with any prepayment, redemption, purchase, defeasance or other satisfaction of any Junior Financing pursuant to Section 7.12(a)(iv), the sum of (1) the greater of (i) $150,000,000 and (ii) (A) prior to a Publishing Assets Disposition, 1.35% of Consolidated Total Assets and (B) after a Publishing Assets Disposition, 1.40% of Consolidated Total Assets 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 Borrower elects to apply to this Section 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 ~~long as~~ applied; provided that (A) immediately after giving effect to any such Restricted Payment, no Event of Default shall have occurred and be continuing ~~or would result therefrom~~(or, in the case of a Restricted Payment in connection with a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into) and (B) in the case of this Section 7.06(f)(2), immediately after giving Pro Forma Effect to any such Restricted Payment, the Borrower shall have a Consolidated Total First Lien Net Debt to Consolidated EBITDA Ratio equal to or less than 4.50:1.00; (g) Restricted Payments made (i) on or after the Closing Date to consummate the Transactions, (ii) in connection with the consummation of the Transactions or as contemplated by the Purchase Agreement, including any payments or loans made to the Borrower or any direct or indirect parent to enable it to make any such payments or (iii) set forth on Schedule 7.06; (h) the Borrower and ~~the~~ any Restricted ~~Subsidiaries~~ Subsidiary may (or, may make ~~additional~~ Restricted Payments to a Parent Holding Company, to allow the Parent Holding Company to) (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination of its Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion; (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) after a Qualified IPO, the Borrower may make Restricted Payments (or, may make Restricted Payments to any Parent Holding Company to permit Restricted Payments to the equity holders of such Parent Holding Company or another Parent Holding Company) in an aggregate amount ~~since the First Amendment Effective Date~~ not ~~to exceed the greater of (i) C$50,000,000 and (ii) 1.5~~exceeding 6.0% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% per annum of the Net Cash Proceeds received by ~~or contributed to~~ the Borrower ~~or a Restricted Subsidiary in or~~ from ~~any~~ such ~~Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying~~ Qualified IPO; (~~l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m~~k) the ~~distribution, by dividend~~ Borrower may (or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) may pay Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (opermit any Parent Holding Company to) ~~redemptions~~ redeem in whole or in part of any ~~of its~~ Equity Interests of the Borrower or any Parent Holding Company in exchange for another class of ~~its~~ Equity Interests or rights to acquire Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new shares of its Equity ~~Interests~~Interests (which net proceeds in the case of a contribution to or issuance by any Parent Holding Company shall substantially concurrently be further contributed to the common equity of the Borrower); provided that ~~such new Equity Interests contain~~ any terms and provisions ~~at least~~ material to the interests of the Lenders, when taken as ~~advantageous~~ a whole, contained in such other class of Equity Interests of the Borrower are no more adverse (taken as a whole) to the Lenders ~~in all respects material to their interests as~~ than those contained in the Equity Interests redeemed thereby~~; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction~~; (ql) the ~~making~~ Borrower may repurchase Equity Interests of any ~~Restricted Payment within sixty~~ Parent Holding Company or the Borrower, as applicable, (60i) ~~days after~~ upon exercise of stock options, warrants or similar equity incentive awards if such Equity Interests represents all or a portion of the ~~date of declaration thereof, if at the date~~ exercise price of such ~~declaration~~ options, warrants or similar equity incentive awards, and the Borrower may make Restricted Payments to any Parent Holding Company as and when necessary to enable any Parent Holding Company to effect such repurchases and (ii) other equity securities of the Borrower or any Parent Holding Company from current or former directors, employees or members of the management of the Borrower, any Restricted ~~Payment would have complied~~ Subsidiary or any Related License Corporation, at a price not in excess of Fair Market Value, in an aggregate amount under this clause (ii) for any fiscal year of the Borrower not to exceed, together with ~~another provision~~ any repurchase, retirement or acquisition of ~~this~~ Equity Interests made pursuant to Section ~~7.06~~7.06(e)(iv) in such fiscal year, $15,000,000; (m) the Borrower may make Restricted Payments in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, officer, manager, consultant or independent contractor (or their respective Affiliates, estates or 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 grant, vesting or delivery of any Equity Interests; (n) the Borrower may make Restricted Payments (i) of property consisting of Excluded Disposition Assets, (ii) of the Equity Interests of any Excluded Disposition Subsidiary and (iii) with the Excluded Disposition Credit Not Otherwise Applied; provided that ~~the making of~~ immediately after giving effect to any such Restricted ~~Payment will reduce capacity~~ Payment, no Event of Default shall have occurred and be continuing (or, in the case of a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for ~~Restricted Payments pursuant to~~ such ~~other provision when so made~~Limited Condition Acquisition are entered into); and (ro) the ~~First Amendment Transactions and~~ Borrower may make Restricted Payments ~~made~~ so long as the Specified Condition is satisfied; provided that immediately after giving effect to ~~effect~~ any such Restricted Payment, no Event of Default shall have occurred and be continuing (or, in the ~~First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders~~ case of ~~restricted stock or performance stock units~~ a Limited Condition Acquisition, no Event of Default exists as ~~provided by~~ of the ~~First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under~~ date the ~~First Amendment Transaction Agreement~~definitive acquisition agreements for such Limited Condition Acquisition are entered into).

Appears in 1 contract

Sources: Credit Agreement (Tribune Media Co)

Restricted Payments. ~~Declare~~ restricting certain dividends, distributions and other payments in respect of equity interests, with baskets for (i) unlimited restricted payments subject only to compliance with a Total Net Leverage Ratio of equal to or ~~make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to~~ less than 1.0x below the ~~Borrower~~ Closing Date Total Net Leverage Ratio and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as ~~immediately after giving effect to such Restricted Payment~~no Specified Event of Default has occurred or is continuing or would result therefrom, (iii) ~~for all Restricted Payments~~ restricted payments with the Available Amount (subject to no continuing Event of Default and, with respect to restricted payments made pursuant ~~to this Section 7.06(c) in excess of C$55,000,000 which are attributable~~ to clause (b) of the Available Amount, ~~the Fixed Charge Coverage~~ a pro forma Total Net Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is~~ no greater than ~~or equal to 2.00:1.00 and~~ the Closing Date Total Net Leverage Ratio), (iiiii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments management equity buybacks in an amount consistent with the First Lien Documentation Principles, (iv) customary tax distributions, (v) restricted payments not to exceed the ~~Available Amount immediately prior~~ sum of 6% of the proceeds of the SPAC IPO, 6% of any other new cash equity contributed to the ~~time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans Transactions and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.007% of the market capitalization of the ~~Borrower at~~ applicable public company parent of the ~~time~~ Borrower, (vi) distributions of ~~such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend~~ investments in one or ~~otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (~~more unrestricted subsidiaries other than ~~Unrestricted Subsidiaries,~~ unrestricted subsidiaries whose assets consist solely of cash or cash equivalents received from a Loan Party (vii) redemptions of equity of the ~~primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or~~ SPAC made in connection with the Transactions and (viii) a ~~consolidation~~general basket of the greater of 25% of Closing Date EBITDA and 25% of LTM Consolidated Adjusted EBITDA subject to no event of default; (g) Transactions with Affiliates: restricting certain transactions with affiliates of a Loan Party in excess of $20,000,000, ~~amalgamation, merger, transfer~~ with a basket for affiliated investments in debt and equity subject to a cap of ~~assets~~ 5.0% of the proposed or ~~acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part~~ outstanding issue amount of ~~any of its Equity Interests for another~~ such class of ~~its Equity Interests~~ debt or equity and limitations on transactions with ~~proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous~~ joint ventures to ~~the Lenders in all respects material to their interests as those contained~~ be set forth in the ~~Equity Interests redeemed thereby~~First Lien Term Loan Documents; ~~provided, further, that such amounts are not included in Excluded Contributions.~~ (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreementh).

Appears in 1 contract

Sources: Merger Agreement (Conyers Park II Acquisition Corp.)

Restricted Payments. ~~Declare or make~~The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, ~~except:~~ except (a) ~~each Restricted Subsidiary may~~ to make ~~Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and,~~ dividends payable solely in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant same class of Equity ~~Interests);~~ Interest of such Person; (b) ~~the Borrower and each of the Restricted Subsidiaries may declare and~~ to make ~~dividend payments~~ dividends or other distributions payable ~~solely in~~ to the ~~Equity Interests~~ Credit Parties (~~other than Disqualified Equity Interests) of the Borrower;~~ directly or indirectly through its Subsidiaries); (c) ~~so long as immediately after giving effect to such Restricted Payment,~~ the Borrower may make (i) ~~for all Restricted Payments made~~ any payment of cash in lieu of fractional shares pursuant to ~~this~~ the terms of any Permitted Bond Hedge Transaction or any convertible Indebtedness permitted pursuant to Section ~~7.06(c~~6.1(h) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ any cash settlement upon conversion of convertible Indebtedness permitted pursuant to ~~this~~ Section ~~7.06(c~~6.1(h) ~~no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments~~ in an amount not to exceed the ~~Available Amount immediately prior to the time of the making~~ principal amount of such ~~Restricted Payment;~~ convertible Indebtedness so converted, 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 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~the proceeds of which shall be used to pay (~~no Default or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 therefrom and (ii) ~~1.5% of Consolidated Total Assets determined at~~ the ~~time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately~~ Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 5.9 after giving effect to any such ~~additional~~ payment: (A) the Credit Parties may purchase shares (or the equivalent, or rights to acquire shares or the equivalent) held by directors, officers and employees of such Credit Party; (B) the Credit Parties may make regularly scheduled interest payments with respect to Subordinated Debt; and (C) (i) the Credit Parties may make unlimited ~~amounts~~ Restricted Payments (subject to the terms of any applicable subordination agreement); provided that, after giving effect to any Restricted ~~Payment~~Payment made pursuant to this clause (C)(i), ~~the Total Net Leverage Ratio (calculated~~ on a Pro Forma Basis, (1) as there is at least $35,000,000 of Revolver Availability and (2) the ~~last day of the most recently ended Test Period on or prior to the date of determination~~ Consolidated Net Leverage Ratio is less than or equal to ~~5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends~~ 3.00 to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO 1.00 and (ii) ~~6.00% of the market capitalization of~~ if the Borrower at does not meet the ~~time of such Qualifying IPO;~~ criteria set forth in clause (lC)(i) above, the Borrower may make Restricted Payments ~~that are made~~ with ~~Excluded Contributions~~ respect to ~~the extent Not Otherwise Applied; (m) the distribution, by dividend~~ share repurchases of any class of Equity Interest of any Credit Party or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its ~~Equity Interests for another~~ Subsidiaries and dividends or distributions on account of any shares of any class of Equity Interest of any Credit Party or any of its ~~Equity Interests or with proceeds~~ Subsidiaries in an aggregate amount, from ~~substantially concurrent equity contributions or issuances~~ the Seventh Amendment Effective Date through the Maturity Date, not to exceed (x) $50,000,000 minus (y) the aggregate amount of ~~new Equity Interests~~Permitted Investments made in reliance on item (ii) of the proviso to clause (k) of the definition of “Permitted Investments”; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p1) ~~the Original Transaction and~~ any Restricted Payments made pursuant to the above clause (C)(i) shall not be included in the limit provided in this clause (C)(ii) and (2) after giving effect ~~the Original Transaction; (q) the making of~~ to any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments made pursuant to ~~such other provision when so made; and~~ this clause (~~r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders~~ C)(ii), on a Pro Forma Basis, there is at least $35,000,000 of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Revolver Availability.

Appears in 1 contract

Sources: Credit Agreement (Osi Systems Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Lead Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a ~~non~~nonwholly-~~Wholly Owned~~ owned Restricted Subsidiary, to the Lead Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Lead Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Lead Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the ACTIVE 61134624v18 143 extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.14 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (d) to the extent constituting Restricted Payments, the Lead Borrower and ~~the~~ its Restricted Subsidiaries may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of~~ Section ~~7.02 (other than Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.14; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Lead Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment~~ 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 Lead Borrower is ~~directly attributable to the Equity Interests~~ a member of ~~the Borrower owned directly~~ a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, Federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, Federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Lead Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of~~ taxes that would have been payable by the ~~foregoing) of the~~ Lead Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings’) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Lead Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Lead Borrower and its Restricted ~~Subsidiaries~~Subsidiaries or (b) the fees and other amounts described in Section 7.08(d) to the extent that the Lead Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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) ACTIVE 61134624v18 144 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 Lead 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’s), the Lead Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Lead Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ to the extent contributed in cash to the common equity of the Lead Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Lead Borrower’s direct or ~~legal existence~~indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Lead Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Restatement Effective Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 Lead Borrower, it would have constituted a “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of the Lead Borrower ~~and/or~~ and its Restricted Subsidiaries; (f) in addition to the foregoing Restricted Payments, additional Restricted Payments following the Restatement Effective Date in an aggregate amount not to exceed the greater of $20,000,000 and 1.5% of Consolidated Total Assets; ACTIVE 61134624v18 145 (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 Lead Borrower from such Qualifying IPO; provided that ~~(A) the amount of~~ immediately before and immediately after giving effect to any such Restricted ~~Payments for any taxable period~~ Payment, no Default or Event of Default shall ~~not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would~~ have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years~~ occurred and ~~(B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ be ~~permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~continuing; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests[reserved]; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~(i) deemed~~ of Parent, Holdings, the Lead Borrower or any Restricted Subsidiary to ~~occur on~~ fund the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration~~ payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii);~~options; and (j) in addition to the foregoing Restricted ~~Payments and~~ Payments, additional Restricted Payments, so long ~~as no Event of Default shall have occurred and be continuing or would result therefrom~~as, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Conditions are satisfied.

Appears in 1 contract

Sources: Abl Credit Agreement (GMS Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrower, and ~~to the~~ other Restricted Subsidiaries of the Borrower (and, in the case of such a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries~~ 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 ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other ~~distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person (and, in the ~~Borrower~~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) ~~so long as immediately after giving effect to such~~ Restricted ~~Payment,~~ Payments made (i) ~~for all Restricted Payments made pursuant~~ on the Closing Date to ~~this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ consummate the ~~Available Amount~~Transactions, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ in respect of working capital adjustments or purchase price adjustments pursuant to ~~this Section 7.06(c~~the Acquisition Agreement or the Split Brands Acquisition Agreement and (iii) ~~no Specified Default shall have occurred~~ in order to satisfy indemnity and ~~be continuing~~ other similar obligations under the Acquisition Agreement or ~~would result therefrom, in each case~~ the ~~Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~Split Brands Acquisition Agreement; (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 ~~Section~~ 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than Section ~~7.08(i~~7.08(f) ~~and 7.08(m)(ii~~or 7.08(l)); (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of ~~the Restricted Subsidiaries~~ Holdings 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 ~~warrants or similar rights~~warrants; (f) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) 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 ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~the Borrower)~~ 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 ~~its~~ any of the foregoing) of such Restricted ~~Subsidiaries~~ Subsidiary (or the Borrower or any other direct or indirect parent thereof) in ~~connection with~~ 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 ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parent thereof) or any of ~~any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an~~ its Restricted Subsidiaries; provided that the aggregate amount ~~after the First Amendment Effective Date,~~ of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to ~~the Borrower~~ Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), ) shall not to exceed ~~the greater of (w) C$~~$35,000,000 ~~and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ in any calendar year (~~it being understood that any~~ with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum (without giving effect to the ~~immediately succeeding three~~ following proviso) of $70,000,000 in any calendar ~~years~~year); provided further that such amount in any calendar year may further be increased by an amount not to ~~exceed~~ exceed: (yA) amounts used to increase the ~~cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests~~ Cumulative Credit pursuant to clauses (~~other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount~~c) and (d) of the ~~Borrower or any direct or indirect parent~~ definition of ~~the Borrower~~ “Cumulative Credit”; (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (zB) the ~~cash proceeds~~ Net Proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries ~~after~~ less the ~~Closing Date~~amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; ~~provided, further,~~ and provided further that ~~(1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2)~~ cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from ~~any future, present or former employee, officer, director, member~~ members of management ~~or consultant (or~~ of the ~~estates~~Borrower, ~~executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of~~ any of the ~~foregoing) of the Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies or any ~~Subsidiary thereof~~ of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the ~~Borrower or any~~ Borrower’s direct or indirect parent ~~thereof~~ companies will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) 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) $85,000,000,the greater of $110,000,000 and 30.0% of Consolidated EBITDA for the most recently ended Test Period, plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted ~~Subsidiaries~~ Payment made pursuant to clause (y) above (I) no Default has occurred and is continuing or would result therefrom and (II) if such Restricted Payment is being made in reliance on either clause (a) or (b) of the definition of “Cumulative Credit,” the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.75 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; (h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~the proceeds of which shall be used~~ [reserved]; (ii) to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ its operating costs and expenses ~~of such Persons~~ 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~~business and 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 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 to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise ~~and similar Taxes~~taxes, and other fees and expenses, required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (iv) 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 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; (v) to finance any Investment that would be permitted to be made pursuant to Section ~~7.02~~7.02 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (vvi) the proceeds of which (A) shall be used to pay customary salary, ~~bonus, severance~~ bonus and other benefits payable ~~to,~~ to officers and ~~indemnities provided on behalf of, directors, officers, employees, members~~ employees of ~~management and consultants~~ Holdings or any direct or indirect parent company of ~~such Persons and any payroll, social security or similar taxes in connection therewith~~ Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and ~~its~~ the Restricted Subsidiaries or (B) shall be used to make payments permitted under ~~Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w~~Sections 7.08(i) and (yp) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement;; and (vii) the proceeds of which shall be used by Holdings to pay ~~cash~~(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; (i) 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, director, manager or 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 ~~lieu of issuing fractional shares~~each case, in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposestock options; (hj) Holdings, the Borrower or any of the Restricted Subsidiaries may pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, or any Permitted ~~Acquisition~~ Acquisition, or any ~~exercise~~ vesting of ~~warrants, options or other securities convertible into or exchangeable for~~ Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00;; and (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), Restricted Payments in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part amount of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ~~Contributions~~Contribution. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Term Loan Credit Agreement (Prestige Consumer Healthcare Inc.)

Restricted Payments. ~~Declare or make, directly or indirectly,~~ No Loan Party shall make any Restricted ~~Payment, except:~~ Payment to any Person except that: (a) ~~each Restricted~~ any Subsidiary of Borrower may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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); Borrower; (b) ~~the~~ Borrower may make dividends and ~~each of the Restricted Subsidiaries may declare and make dividend payments or other~~ distributions ~~payable solely~~ in the ~~Equity Interests (other than Disqualified Equity Interests)~~ form of Stock to its Stockholders to the ~~Borrower;~~ extent permitted by Section 6.5 hereof and in connection with mergers permitted by Section 6.1(a)(iv); (c) ~~so long as immediately~~ Borrower may make (i) regularly scheduled payments of interest to holders of the Convertible Notes, (ii) payments in cash or Stock upon conversion of any of the Convertible Notes pursuant to Section 4.1 of the Convertible Note Indenture and paragraph 9 of the Convertible Notes; (iii) payments in cash on or after February 11, 2009 upon redemption of the Convertible Notes pursuant to Section 3.8 of the Convertible Note Indenture and paragraph 7 of the Convertible Notes, (iv) payments in cash on or after February 11, 2009 upon redemption of the Convertible Notes by Borrower pursuant to Section 3.1 of the Convertible Note Indenture and paragraph 6 of the Convertible Notes, provided that no Default or Event of Default has occurred and is continuing both before and after giving effect to any such ~~Restricted Payment~~payment, (iv) ~~for all Restricted Payments made~~ payment in cash of the aggregate principal amount of the Convertible Notes upon maturity or upon acceleration, (vi) payment of liquidated damages to the holders of Convertible Notes pursuant to ~~this~~ Section ~~7.06(c~~3 of the Registration Rights Agreement, (vii) payments in ~~excess~~ cash or Stock pursuant to the Convertible Notes Warrant Transaction, (viii) any payments required for registration expenses pursuant to Section 5 of ~~C$55,000,000 which are attributable to clause~~ the Registration Rights Agreement, and (bix) payment of the Change in Control Purchase Price (as defined in Section 3.9(c) of the ~~Available Amount, the Fixed Charge Coverage Ratio~~ Convertible Note Indenture) of any Convertible Notes upon a Change in Control (~~calculated on a Pro Forma Basis~~as defined in Section 3.9(a) as of the ~~last day~~ Convertible Note Indenture) pursuant to Section 3.9 of the ~~most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Convertible Note Indenture and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time paragraph 7 of the ~~making of such Restricted Payment;~~ Convertible Notes; (d) to the ~~extent constituting Restricted Payments~~Loan Parties may make payments of principal of, and interest on, the ~~Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of~~ Intercompany Notes issued in accordance with Section ~~7.02 (other than Section 7.02(e) and 7.02(m~~6.3(j)~~), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));~~ ; (e) ~~redemptions~~Acquirer and ▇▇▇▇▇▇’▇, ~~repurchases~~as applicable, ~~retirements or other acquisitions~~ may make payments of ~~Equity Interests~~ principal of, and interest on, the Acquirer Intercompany Note and the ▇▇▇▇▇▇’▇ Intercompany Note issued in accordance with Section 6.3; provided that the ~~Borrower or any~~ outstanding principal balance of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries ▇▇▇▇▇▇’▇ Intercompany Note may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, not be less than the amount of ~~such Restricted Payment is directly attributable to~~ the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection Prior Lender Obligations paid with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated proceeds thereof on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; ~~provided~~(f) Borrower, ~~further, that (1) the Borrower~~ Acquirer and ▇▇▇▇▇▇’▇ may ~~elect to apply all or~~ make any ~~portion~~ payments required as a result of the ~~aggregate increase~~ Acquisition as contemplated by ~~clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to~~ the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof Merger Agreement in connection with ~~a repurchase~~ any dissenters’ rights, amounts due relating to any option, warrant or other right of ~~Equity Interests~~ ▇▇▇▇▇▇’▇ shareholders pursuant to Section 2.4 of the ~~Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this~~ Merger Agreement; ; (g) ~~the Borrower and the Restricted Subsidiaries may make Restricted Payments~~ payments pursuant to any ~~direct or indirect parent~~ transaction permitted by Section 6.4; (h) payments of ~~the Borrower: (i) the proceeds of which shall be used~~ royalties to ~~pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs~~ DSGV and ~~expenses of such Persons incurred~~ ▇▇▇▇▇▇’▇ Nevada, Inc. 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, attributable to the ownership or operations consistent with past practice arising out of the ~~Borrower~~ use of Trademarks owned by DSGV and ~~its Restricted 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) franchise~~ ▇▇▇▇▇▇’▇ Nevada, Inc; and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) ~~redemptions~~any transaction otherwise permitted by Sections 6.1, ~~repurchases~~6.2, ~~retirements~~ or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on 6.8 which constitutes a ~~Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of~~ Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Dicks Sporting Goods Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each ~~Restricted~~ Subsidiary may make Restricted Payments to the Borrower and to ~~the other Restricted~~ wholly-owned Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned Restricted~~ wholly-owned Subsidiary, to the Borrower and any ~~other Restricted Subsidiaries~~ Subsidiary and to each other owner of capital stock or other Equity Interests of such ~~Restricted~~ Subsidiary on a pro rata basis based on their relative ownership ~~interests of the relevant class of Equity Interests~~interests); (b) each Subsidiary of the Borrower ~~and each of the Restricted Subsidiaries~~ 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)~~ of ~~the Borrower~~such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; (d) the Borrower may make Restricted Payments so long as ~~immediately after giving effect to~~ (1) the Material Debt Documents then outstanding, if any, would permit such Restricted Payment, (i2) ~~for all~~ after giving pro forma effect to such Restricted Payments, the Borrower and its Subsidiaries shall have at least $50,000,000 of available Liquidity and (3) if, after giving effect thereto, either (A) the pro forma Consolidated Senior Secured Leverage Ratio would be less than 2.00:1.00 or (B) the aggregate amount of such Restricted Payments made pursuant to this ~~Section 7.06(c~~subclause (3)(B) would be less than the sum of (w) $150,000,000 in ~~excess of C$55,000,000 which are attributable~~ the aggregate since the Restatement Closing Date plus (x) up to ~~clause (b)~~ 100% of the ~~Available Amount,~~ Net Cash Proceeds from the ~~Fixed Charge Coverage Ratio~~ sale or issuance by the Borrower of any of its Equity Interests since the Restatement Closing Date plus (~~calculated on a Pro Forma Basis~~y) as 50% of the ~~last day of~~ Consolidated Net Income since the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))Restatement Closing Date; (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights;[reserved]; and (f) the Borrower and ~~the Restricted~~ its Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made incur Indebtedness pursuant to Section ~~7.02(m~~7.02(c) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly following the closing refinancings thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Vista Outdoor Inc.)

Restricted Payments. ~~Declare~~ The Credit Parties will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (a) ~~each Restricted Subsidiary~~ Subsidiaries may ~~make Restricted Payments~~ declare and pay dividends ratably with respect to ~~the Borrower~~ their Capital Stock and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on repurchase their ~~relative ownership interests of the relevant class of Equity Interests)~~Capital Stock ratably; (b) ~~the Borrower and each~~ Crown Holdings may pay dividends consisting solely of ~~the Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests)~~ shares of ~~the Borrower~~its common stock; (c) ~~so long~~ the purchase of the Capital Stock of the Non-U.S. Subsidiary listed on Schedule 8.8 in connection with the Minority Acquisition and other purchases of Capital Stock of non-Wholly-Owned Subsidiaries as ~~immediately after giving effect to~~ permitted by Section 8.4(m); (d) Crown Holdings may make Restricted Payments not otherwise permitted hereunder; provided that the aggregate sum of any such ~~Restricted Payment, (i) for all~~ Restricted Payments made pursuant to this ~~Section 7.06(c) in excess of C$55,000,000 which are attributable to~~ clause (bd) from and after the Effective Date shall not exceed, on any date of determination, an amount equal to: (i) the sum of (A) 50% of the ~~Available Amount~~Consolidated Net Income of Crown Holdings for the period (taken as one accounting period) from December 31, 2004 to the ~~Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as~~ end of ~~the last day of the~~ Crown Holdings’ most recently ended ~~Test Period on or prior~~ Fiscal Quarter for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); plus (B) 100% of the aggregate Net Proceeds received by Crown Holdings from the issuance and sale of its Capital Stock after the Effective Date (other than Capital Stock that is not permitted to be issued under Section 8.1(b)), plus (C) $200,000,000 (such sum, the “Restricted Payments Basket”) less (ii) the aggregate amount of Investments made as of such date of determination ~~is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made~~ pursuant to Section 8.4(l); provided further that any Restricted Payment that would cause or result in a “Default” or “Event of Default” as defined in any Public Debt Document shall not be permitted under this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; clause (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) ~~redemptions~~the purchase, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement redemption or other acquisition or retirement for value of ~~Equity Interests~~ any Capital Stock of ~~the Borrower (or such direct or indirect parent thereof)~~ Crown Holdings held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) ~~1.1%~~ by employees or directors of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower Crown Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement, stock option agreement or ~~any direct~~ similar agreement or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) ~~and (z~~for matching contributions to otherwise meet the needs of its employee stock purchase, deferred compensation, 401(k) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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~~ employee benefit plans in the ordinary course of business, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the ~~making~~ aggregate price paid (net of employee contributions) for all such ~~Restricted Payment will reduce capacity for Restricted Payments pursuant to~~ purchased, redeemed, acquired or retired Capital Stock shall not exceed the sum of $25,000,000 in any Fiscal Year provided further that such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders permitted amount of ~~restricted stock~~ purchased, redeemed, acquired or ~~performance stock units as provided by the First Amendment Transaction Agreement and (B)~~ retired Capital Stock may be increased in ~~order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).~~any Fiscal Year

Appears in 1 contract

Sources: Credit Agreement (Crown Holdings Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Lead Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Lead Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Lead Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Lead Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.14 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (d) to the extent constituting Restricted Payments, the Lead Borrower and ~~the~~ its Restricted Subsidiaries may enter into ~~and consummate~~ transactions expressly permitted by ~~any provision of~~ Section ~~7.02 (other than Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.14; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Lead Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment~~ 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 Lead Borrower is ~~directly attributable to the Equity Interests~~ a member of ~~the Borrower owned directly~~ a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, Federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, Federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Lead Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of~~ taxes that would have been payable by the ~~foregoing) of the~~ Lead Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings’) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Lead Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Lead Borrower and its Restricted ~~Subsidiaries~~Subsidiaries or (b) the fees and other amounts described in Section 7.08(d) to the extent that the Lead Borrower would be then permitted under such Section 7.08(d) to pay such fees and other amounts directly; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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 Lead 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’s), the Lead Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Lead Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ to the extent contributed in cash to the common equity of the Lead Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Lead Borrower’s direct or ~~legal existence~~indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Lead Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 Lead Borrower, it would have constituted a “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of the Lead Borrower ~~and/or~~ and its Restricted Subsidiaries; (f) in addition to the foregoing Restricted Payments, additional Restricted Payments in an aggregate amount not to exceed the greater of $20,000,000 and 1.5% of Consolidated Total Assets; (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 Lead Borrower from such Qualifying IPO; provided that ~~(A) the amount of~~ immediately before and immediately after giving effect to any such Restricted ~~Payments for any taxable period~~ Payment, no Default or Event of Default shall ~~not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would~~ have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years~~ occurred and ~~(B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ be ~~permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~continuing; (h) ~~the Borrower or any of the Restricted Subsidiaries may pay cash (or make~~ Restricted Payments ~~to any direct or indirect parent~~ (i) made on the ~~proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests~~ Closing Date in connection with ~~any dividend, split~~ the Transactions or ~~combination thereof, any Permitted~~ (ii) made within 60 days after the Closing Date for payments on stock appreciation rights in connection with the Transactions and in accordance with the Acquisition ~~or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Agreement; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~(i) deemed~~ of Holdings, the Lead Borrower or any Restricted Subsidiary to ~~occur on~~ fund the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration~~ payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii)~~options; (j) in addition to the foregoing Restricted ~~Payments and~~ Payments, additional Restricted Payments, so long ~~as no Event of Default shall have occurred and be continuing or would result therefrom~~as, the ~~Borrower and the~~ Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00;Payment Conditions are satisfied; and (k) ~~after a Qualifying IPO,~~ Restricted Payments consisting of the ~~declaration and payment~~ proceeds of ~~dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to~~ any ~~of its parents to permit such parent to pay such dividends~~Disposition permitted under Section 7.05(n), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent ~~Not Otherwise Applied; (m)~~ made in accordance with the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsAcquisition Agreement. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Abl Credit Agreement (GMS Inc.)

Restricted Payments. ~~Declare or make~~The Borrower shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to make any Restricted ~~Payment,~~ Payment except: (a) repurchases of Syndicated Interests in an aggregate amount in any Fiscal Year up to $20,000,000 plus the proceeds received during such Fiscal Year of any resale of such repurchased Syndicated Interests; (b) each Restricted Subsidiary may make Restricted Payments to the Borrower and ~~to the~~ any other Restricted ~~Subsidiaries (and,~~ Subsidiary and any other Person that owns a direct Equity Interest in ~~the case of a Restricted Payment by a non-Wholly Owned~~ such Restricted Subsidiary, ratably according to their respective holdings of the ~~Borrower and any other Restricted Subsidiaries and to each other owner~~ type of Equity ~~Interests~~ Interest in respect of which such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests); (b) the Borrower and each of the Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the BorrowerPayment is being made; (c) ~~so long as immediately~~ if at the time of and after giving effect to such Restricted ~~Payment~~Payment on a pro forma basis, (i) ~~for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ the ~~Available Amount, the Fixed Charge Coverage~~ Senior Secured Leverage Ratio ~~(calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination~~ is ~~greater than or~~ equal to ~~2.00:1.00 and~~ or less than 1.50:1.00, (ii) ~~for all Restricted Payments made pursuant to this Section 7.06(c)~~ no ~~Specified~~ Default ~~shall have occurred and be continuing~~ or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing ~~or would result therefrom,~~ and (iii) the Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ would be in compliance with the financial covenants set forth in Section 6.01, Restricted Payments to Persons that are not Loan Parties; (d) if at the time of and after giving effect to such Restricted Payment on a pro forma basis, (i) the Senior Secured Leverage Ratio exceeds 1.50:1.00, (ii) no Default or Event of Default shall have occurred and be continuing and (iii) the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants set forth in Section 6.01, Restricted Payments to Persons that are not Loan Parties in an aggregate amount ~~since~~ not exceeding (A) $200,000,000, plus (B) if, after giving effect such Restricted Payment on a pro forma basis, the ~~First Amendment Effective Date~~ Leverage Ratio would not be greater than 4.50:1.00, additional Restricted Payments up to ~~exceed~~ the ~~greater~~ Available Amount at such time; (e) repurchases by the Borrower of its common stock from holders thereof of less than 100 shares of its common stock; (f) the Borrower may make scheduled cash dividend payments at the times and to the extent required by the terms of any agreement evidencing or governing the Series A Preferred Stock; and (g) so long as (i) ~~C$50,000,000~~ no Default or Event of Default shall have occurred and be continuing at the time thereof or would result therefrom and (ii) ~~1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately~~ after giving effect ~~to any such additional unlimited amounts of Restricted Payment~~thereto on a pro forma basis, the ~~Total Net~~ Leverage Ratio ~~(calculated on a Pro Forma Basis) as~~ would not be greater than 3.00:1.00, repurchases, redemptions and/or other acquisitions of all or any portion of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made Series A Preferred Stock with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) ~~to holders of restricted stock~~ cash on hand or ~~performance stock units as provided by the First Amendment Transaction Agreement and~~ (B) ~~in order to satisfy indemnity and~~ proceeds of the Loans or the issuance or proceeds of other ~~similar obligations~~ Indebtedness, the incurrence of which is not prohibited under ~~the First Amendment Transaction Agreement)~~Section 6.03.

Appears in 1 contract

Sources: Credit Agreement (Healthsouth Corp)

Restricted Payments. ~~Declare~~ The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) ~~each~~ the Borrower or any Restricted Subsidiary may ~~make Restricted Payments~~ declare and pay dividends or other distributions with respect to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of its Equity Interests payable solely in additional shares of ~~such Restricted Subsidiary based on their relative ownership interests of the relevant class of~~ its Qualified Equity Interests or options to purchase Qualified Equity Interests); (b) ~~the Borrower and each of the~~ Restricted Subsidiaries may declare and make ~~dividend payments~~ Restricted Payments ratably (or ~~other distributions payable solely in the Equity Interests (other than Disqualified~~ on a basis more favorable to Borrower) with respect to their Equity Interests~~) of the Borrower~~; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower ~~and the Restricted Subsidiaries~~ 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 its Restricted Subsidiaries in an amount not to exceed ~~the Available Amount immediately prior to the time of the making of such Restricted Payment~~$10,000,000; (d) the payment of dividends and distributions within sixty (60) days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with any other provision of this Section 6.04; (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 ~~7.02~~ 6.07 (other than Section ~~7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii~~6.07(a)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary 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 warrants or ~~similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (~~forfeiture of restricted stock awards or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementrestricted stock units; (g) the Borrower ~~and the~~ or any Restricted ~~Subsidiaries~~ Subsidiary may make unlimited Restricted Payments ~~to any direct or indirect parent~~ in cash under this clause (g) so long as (A) on a Pro Forma Basis the Total Leverage Ratio as of the ~~Borrower:~~ last day of the most recent fiscal quarter for which financial statements have been delivered or deemed delivered pursuant to Section 5.01(a) or 5.01(b) (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrativeor, ~~legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable~~ prior to the ~~ownership~~ initial delivery of any such financial statements, as of September 30, 2016) does not exceed 3.25 to 1.00, (B) on a Pro Forma Basis the Consolidated EBITDA for the most recent fiscal quarter for which financial statements have been delivered or ~~operations~~ deemed delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the initial delivery of any such financial statements, for the ~~Borrower~~ fiscal quarter ended September 30, 2016) is not less than $75,000,000 and ~~its Restricted Subsidiaries~~(C) no Default or Event of Default has occurred and is continuing or would arise after giving effect thereto; (iih) the ~~proceeds~~ payment of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, cash in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or ~~exchangeable~~ exercisable for Qualified Equity Interests of ~~such Persons; and (viii) for any taxable period for which~~ the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeBorrower; (hi) the declaration and payments of dividends on Disqualified Equity Interests permitted to be issued pursuant to Section 6.01; (j) the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Borrower or ~~any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to~~ any direct or indirect parent in exchange for, or out of the proceeds of ~~which shall be used to enable it to pay cash) in lieu of fractional~~ a substantially concurrent offering of, Qualified Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00Borrower; (k) ~~after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and~~ payments or distributions by the Borrower ~~and its restricted Subsidiaries may pay dividends~~ or any Restricted Subsidiary to dissenting stockholders of acquired companies who have exercised appraisal or other similar remedies pursuant to applicable law in connection with any ~~of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received~~ merger or acquisition consummated by ~~or contributed to~~ the Borrower or a Restricted Subsidiary ~~in or from any such Qualifying IPO and~~ of a Person (~~ii) 6.00%~~ other than a Subsidiary of the ~~market capitalization of~~ Borrower) on or after the ~~Borrower at the time of such Qualifying IPO~~Closing Date and not prohibited by this Agreement; (l) ~~Restricted Payments that are made with Excluded Contributions to~~ purchases, redemptions or acquisitions of fractional shares of Equity Interests of the ~~extent Not Otherwise Applied;~~Borrower arising out of stock dividends, splits or combinations; and (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments necessary to ~~satisfy appraisal or other dissenters’ rights~~consummate the Transactions. For purposes of determining compliance with this Section 6.04, ~~pursuant~~ Restricted Payments need not be permitted solely by reference to or one category of permitted Restricted Payments described in ~~connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with~~ Section ~~7.02 or Section 7.04;~~ 6.04(a) through (om) ~~redemptions in whole or~~ but may be permitted in part of under any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionscombination thereof. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (J2 Global, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~provided that the Borrower and any Restricted Subsidiary may make any Restricted Payment if (A) immediately before and after such Restricted Payment, no Event of Default shall have occurred and be continuing and (B) for the Test Period immediately preceding such Restricted Payment, the Total Leverage Ratio would be less than or equal to 3.50 to 1.00 (which shall be calculated on a Pro Forma Basis giving effect to such Restricted Payment). The limitations set forth in the immediately preceding sentence shall not apply to the following items: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any of the other Restricted 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 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 ~~the~~ its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment[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 (other than Section 7.02(e) and 7.02(m))~~7.02, ~~Section~~ 7.03, ~~Section~~ 7.04, ~~Section~~ 7.05 ~~(other than Section 7.05(e))~~ or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.08; (e) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in ~~the Borrower or any of the~~ a Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (f) so long as no Event of Default has occurred and is continuing at such time, the Borrower ~~and the Restricted Subsidiaries~~ may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of any indirect parent of the Borrower ~~(or such direct or indirect parent thereof) held by~~ from any future, present or former ~~officers~~employee, ~~directors~~director, ~~employees, members of management and consultants~~ consultant or distributor (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~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 ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ 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 ~~a breach~~ any direct or indirect parent of the Borrower) or any ~~non-compete or other restrictive covenant or confidentiality obligations~~ of ~~any such Person at any time after such Person’s disability~~its Subsidiaries; provided, ~~retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with~~ that the aggregate amount of ~~loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of~~ Restricted Payments ~~permitted by~~ made under this clause (f), ) does not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $10,000,000 in any ~~calendar~~ fiscal year (~~it being understood that any~~ with unused amounts in any ~~calendar~~ fiscal year ~~may be~~ being carried over to succeeding fiscal years subject to a maximum (without giving effect to the ~~immediately succeeding three calendar years~~following proviso) of $15,000,000 in any fiscal year); ~~provided~~ provided, further, that such amount in any ~~calendar~~ fiscal year may be increased by an amount not to ~~exceed~~ exceed: (yi) the cash proceeds ~~received by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity Interests~~, Excluded Contributions or amounts that increased the Available Amount~~) of the Borrower ~~or any direct or indirect parent of the Borrower (~~and, to the extent contributed to the Borrower) , cash proceeds from the sale of Equity Interests of any direct or indirect parent company of the Borrower, in each case to any future, present or former ~~employee~~employees, ~~officer~~directors, ~~director~~officers, ~~member of management~~ managers or ~~consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ consultants of the ~~foregoing) of the Borrower or~~ Borrower, any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to increase the Available Amount; plus (zii) the cash proceeds of key man life insurance policies received by the Borrower or ~~the~~ its Restricted Subsidiaries after the Closing Date; ~~provided, further, that~~ less (1iii) the ~~Borrower may elect to apply all or~~ amount of any ~~portion of~~ Restricted Payments previously made with the ~~aggregate increase contemplated by~~ cash proceeds described in clauses (yi) and (zii) ~~above in any calendar year~~ of this clause (f); and ~~(2)~~ provided further that cancellation of Indebtedness owing to the Borrower ~~or any Restricted Subsidiary~~ from any future, present or former ~~employee~~employees, ~~officer~~directors, ~~director~~officers, ~~member of management~~ managers or ~~consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any~~ consultants of the ~~foregoing)~~ Borrower, any direct or indirect parent company of the Borrower or any ~~direct or indirect parent thereof or any Subsidiary thereof~~ of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of ~~the Borrower or~~ any direct or indirect parent ~~thereof~~ of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this ~~Section 7.06~~ covenant or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose[Reserved]; (h) the Borrower or any of the Restricted Subsidiaries may (a) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, split or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (b) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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) ~~redemptions~~the payment of any dividend or distribution within 60 days after the date of declaration thereof, ~~repurchases, retirements or other acquisitions~~ if at the date of ~~Equity Interests~~ declaration (i) ~~deemed to occur on~~ such payment would have complied with the ~~exercise~~ provisions of ~~options by the delivery of Equity Interests in satisfaction of the exercise price of such options or~~ this Agreement and (ii) no Event of Default had occurred and was continuing at such time; (j) the declaration and payment of dividends on the Borrower’s common stock of up to 6.0% per annum of the net cash proceeds received by or contributed to the Borrower in ~~consideration~~ or from any public offering of the Borrower’s common stock prior to, on, or after the Closing Date, 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~~ Taxes payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates~~any spouses, former spouses, successors, executors, administrators, heirs, ~~family members, legatees, distributees, spouses, former spouses, domestic partners~~ legatees or distributees of any of the foregoing) and ~~former domestic partners),~~ any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii)~~options; (jl) in addition to the foregoing Restricted Payments and so long as no ~~Event of~~ Default shall have occurred and be continuing or would result therefrom, the Borrower ~~and the Restricted Subsidiaries~~ may make additional Restricted Payments in an aggregate amount, together with the aggregate amount ~~since~~ of prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.12(a)(iv), not to exceed the ~~First Amendment Effective Date~~ greater of $60,000,000 and 4.0% of Total Assets, except that, if the Consolidated EBITDA-NCI to Consolidated Interest Expense Ratio for the Test Period immediately preceding the Restricted Payment that results in such excess is not less than 2.00 to 1.00, such excess Restricted Payment may be made using the Available Amount at such time; (m) [Reserved]; (n) the purchase, redemption or other acquisition from Strategic Investors of Equity Interests in any Subsidiary of the Borrower; and (o) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (o) not to exceed the greater of (i) ~~C$50,000,000~~ $65.0 million and (ii) ~~1.5~~4.0% of ~~Consolidated~~ Total Assets ~~determined~~ at ~~the time of incurrence of~~ such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionstime. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Surgical Care Affiliates, Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.13 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.13; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ 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 ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of~~ taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,500,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted ~~Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO~~Subsidiaries; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: First Lien Credit Agreement (GMS Inc.)

Restricted Payments. ~~Declare~~ The Parent will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except~~except as follows: (a) ~~each~~ the Parent may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock). (b) Atlas ▇▇▇▇▇▇▇▇▇ and wholly-owned Restricted Subsidiaries (other than the Borrower) may declare and pay dividends ratably with respect to their Equity Interests. (c) any Restricted Subsidiary (other than the Borrower) may make Restricted Payments to the Borrower ~~and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ or any other Loan Party (other than the Parent). (d) the Parent may make Restricted ~~Subsidiaries~~ Payments pursuant to and ~~to each~~ in connection with stock option plans or other ~~owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests~~ benefit plans or arrangements for directors, management, employees or consultants of the ~~relevant class~~ Parent and the Restricted Subsidiaries; provided that the amount of ~~Equity Interests);~~Restricted Payments in cash under this clause (d) shall not exceed $500,000 during any fiscal year. (be) the Borrower ~~and each of~~ may make Restricted Payments to the Parent to enable the Parent to make Restricted ~~Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c~~Payments permitted by Section 9.04(d) so long as ~~immediately after giving effect to such Restricted Payment,~~ (i) ~~for all~~ the conditions to the Restricted Payments ~~made pursuant to this~~ by the Parent set forth in Section ~~7.06(c~~9.04(d) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 have been satisfied and (ii) ~~for all~~ the proceeds of such Restricted Payments ~~made pursuant~~ are promptly applied by the Parent to ~~this~~ make Restricted Payments permitted by Section ~~7.06(c~~9.04(d). (f) ~~no Specified Default shall have occurred~~ the Borrower may make dividends and ~~be continuing or would result therefrom~~other distributions to Parent for the purpose of paying (i) expenses consisting of audit, accounting and legal fees and expenses and other expenses required to maintain its corporate existence, and (ii) to pay any customary and reasonable general corporate operating and overhead costs and expenses; provided that in each case no Event of Default under Section 10.01(a), (b), (g), (h) or (i) has occurred and is continuing or will result therefrom. (g) repurchases of Equity Interests solely to the extent required to consummate the Specified Transaction. (h) the Borrower ~~and the Restricted Subsidiaries~~ may repurchase (or make Restricted Payments ~~in an amount not to exceed the Available Amount immediately prior~~ to the ~~time of the making of such Restricted Payment; (d~~Parent to enable it to repurchase) 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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in upon the ~~Borrower or any of the Restricted Subsidiaries deemed to occur upon~~ exercise of ~~stock~~ options or warrants or ~~similar rights~~ other securities convertible into or exchangeable for Equity Interests if such Equity Interests ~~represent a~~ represents all or portion of the exercise price of such options or warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members~~ as part of a ~~consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a~~ “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionscashless” exercise. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Atlas Energy Group, LLC)

Restricted Payments. ~~Declare or make,~~ Neither the Lead Borrower nor any of the Restricted Subsidiaries shall directly or indirectly, declare or make any Restricted Payment, except: (a) the Borrowers and each other Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrowers, and ~~to the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the ~~Borrower~~ Borrowers and any other Restricted ~~Subsidiaries 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 Lead Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) Restricted Payments made on or after the Closing Date in connection with the Transactions, including the settlement of claims or actions in connection with the Acquisition, or to satisfy indemnity or other similar obligations or any other earnouts, purchase price adjustments, working capital adjustments and any other payments under the Merger Agreement; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Lead Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 3.25 to ~~the time of the making of such Restricted Payment~~1.00; (de) to the extent constituting Restricted Payments, the Lead Borrower and ~~the~~ its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of ~~Section~~ Sections 7.02 (other than ~~Section~~ Sections 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05~~ 7.04 or 7.07 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~Sections 7.07(e) and ~~7.08(m)(ii~~(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in ~~the~~ any Borrower (or any ~~of the~~ direct or indirect parent thereof) or any Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (fg) the Lead Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrowers or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ such Restricted Subsidiary (or of the Borrowers or any other such direct or indirect parent thereof) ~~held by~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager, member, partner, independent contractor or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or Immediate Family Members) of ~~the Borrower~~ such Restricted Subsidiary (or the Borrowers or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ of any such Person or pursuant to any employee or director equity plan, employee, manager, officer, member, partner, independent contractor or director stock option plan or any other employee, manager, officer, member, partner, independent contractor or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, officer, director, member, partner, independent contractor or consultant of such Restricted Subsidiary (or ~~a breach~~ the Borrowers or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $40,000,000 in any calendar year (~~it being understood that any~~ which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year or $100,000,000 subsequent to the ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the extent contributed to the Lead Borrower, the net cash proceeds ~~received by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity ~~Interests, Excluded Contributions~~ Interests or ~~amounts that increased the Available Amount~~Designated Equity Contributions) of any of the ~~Borrower or any~~ Borrowers’ direct or indirect parent ~~of the Borrower (to the extent contributed to the Borrower)~~ companies, in each case to any future, present or former ~~employee~~employees, ~~officer~~officers, ~~director~~members of management, ~~member of management~~ managers, partners, independent contractors, directors or ~~consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ their respective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family Members) of the ~~Borrower or~~ Lead Borrower, any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the net cash proceeds of key man life insurance policies received by the Lead Borrower or ~~the~~ its Restricted ~~Subsidiaries after the Closing Date~~Subsidiaries; ~~provided, further, that~~ less (1iii) 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 Lead Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any~~ exceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(v), (x) the greater of (i) $65,000,000 and (ii) 40% of LTM Consolidated EBITDA, plus (y) subject to, solely in the case of the portion of the ~~aggregate increase contemplated by clauses~~ Cumulative Credit attributable to clause (yb) thereof, no Event of Default under Sections 8.01(a) or (f) with respect to any Borrower having occurred and ~~(z) above in any calendar year and (2) cancellation of Indebtedness owing to~~ continuing or resulting therefrom, the ~~Borrower or any Restricted Subsidiary from any future~~portion, ~~present or former employee~~if any, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the ~~foregoing) of~~ Cumulative Credit on such date that the Lead Borrower ~~or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed~~ elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the ~~Borrower and the Restricted Subsidiaries~~ Borrowers may make Restricted Payments to any direct or indirect parent of the ~~Borrower~~Borrowers: (i) ~~the proceeds of which shall be used~~ to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ its organizational, operating costs and other costs and expenses ~~of such Persons~~ (including, without limitation, expenses related to auditing or other accounting or tax reporting matters) 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,~~ business and attributable to the ownership or operations of Holdings, the Lead Borrower and ~~its~~ the Restricted Subsidiaries, any costs, expenses and liabilities incurred in connection with any litigation or arbitration attributable to the ownership or operations of Holdings, the Lead Borrower and 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 Holdings, the Lead Borrower and the Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (iii) with respect to any taxable period for which the Lead Borrower is a disregarded entity or partnership for U.S. federal income tax purposes, in the form of permitted tax distributions to each direct or indirect owner of the Lead Borrower (as applicable) which shall be equal to the product of (X) such owner’s direct or indirect allocable share of the taxable income of the Lead Borrower or attributable to the Lead Borrower if the Lead Borrower is a disregarded entity (calculated as if the Lead Borrower were a partnership for U.S. federal income tax purposes) for such taxable period, provided that any items of income, gain, loss or deduction shall be determined without regard to any adjustments pursuant to Section 743 of the Code and (Y) the highest combined marginal federal, state and local income tax rate applicable to any direct or indirect equity owner of the Lead Borrower for such taxable period (taking into account the character (long-term capital gain, qualified dividend income, tax-exempt income, etc.) of the current period taxable income); provided that any such distributions shall be made on a pro rata basis; (iv) 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 (BaB) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay customary salary, bonus, indemnity and other benefits payable to future, present or former officers, directors, managers, members, partners, consultants, independent contractors or employees of Holdings, the Lead Borrower or any direct or indirect parent company of the Borrowers to the extent such salaries, bonuses, indemnity and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries; (vi) the proceeds of which shall be used by Holdings or the Borrowers 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 equity or debt ~~offering permitted~~ offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this Agreement (whether or not successful)~~; (v)~~ ; provided that any such transaction was in the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation good faith judgment of the Lead Borrower intended to be for the benefit of the Lead Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement;Subsidiaries; and (vii) the proceeds of which shall be used by Holdings or the Lead Borrower to pay ~~cash, 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 such Persons; and (viii) for~~ to make Restricted Payments to allow any ~~taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent thereof to pay) amounts payable pursuant to the Support and Services Agreement (including 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 Lead Borrower is to the ~~common parent (~~Lenders when taken as a ~~“Tax Group”~~whole, as compared to the Support and Services Agreement as in effect immediately prior to such amendment or replacement), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only solely to the extent ~~that cash distributions were made~~ such amounts are not paid directly by ~~such Unrestricted Subsidiary to Borrower~~ Holdings or ~~any of~~ its ~~Restricted Subsidiaries for such purpose~~Subsidiaries; (hj) payments made or expected to be made by the Lead Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar Taxes payable upon or in connection with the exercise or vesting of Equity Interests or any other equity award with respect to any future, present or former employee, director, manager, officer, partner, independent consultant or 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 Lead Borrower or any Restricted Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, ~~split~~ distribution, split, merger, consolidation, amalgamation or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (ii) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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; (il) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments after a Qualified IPO and so long as no Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, (i) any Restricted Payment by the Borrowers or any other direct or indirect parent of the Borrowers 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 7.00% per annum of the net proceeds received by (or contributed to) the Lead Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ from such Qualified IPO and (B) Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ per annum not to exceed ~~the greater of (i) C$50,000,000 and (ii) 1.5~~7.00% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise AppliedMarket 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 claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or Section 7.04; (o) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock 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 Lead Borrower or a Restricted Subsidiary ~~by,~~ 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,~~ Subsidiaries the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) ~~the Original Transaction and~~ Restricted Payments that are made in (i) an amount equal to ~~effect~~ the ~~Original Transaction;~~amount of Excluded Contributions previously received and the Lead 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 acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent Not Otherwise Applied; and (q) the ~~making~~ payment of any ~~Restricted Payment~~ dividend or other distribution or the consummation of any irrevocable redemption within ~~sixty (60)~~ 60 days after the date of declaration ~~thereof~~of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of ~~such~~ declaration ~~such Restricted Payment~~ or notice, the dividend or other distribution or redemption payment would have complied with ~~another provision~~ the provisions of this ~~Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made~~Agreement.; and (r) the ~~First Amendment Transactions and Restricted Payments made to effect~~ payment of the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)2020 Special Dividend.

Appears in 1 contract

Sources: Credit Agreement (Bumble Inc.)

Appears in 1 contract

Sources: Credit Agreement (Alight, Inc. / Delaware)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a ~~non~~Restricted Subsidiary that is not Wholly-~~Wholly~~ Owned by the Borrower or one of the Borrower’s Wholly-Owned Restricted ~~Subsidiary~~Subsidiaries, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount or amounts applied to incur Contribution Indebtedness), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or Junior Financing Prepayments pursuant to Section 7.14(a) or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 ~~Section~~ Sections 7.02(e), (n), (t) and ~~7.02(m~~(u)), ~~Section 7.03~~7.04 or 7.08(e), ~~Section 7.04, Section 7.05~~ (~~other than Section 7.05(e)~~g) or ~~Section 7.08~~ (~~other than Section 7.08(i) and 7.08(m)(ii)~~p); (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of clause (iv) below, to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ 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 ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state, provincial or ~~any~~ local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which such a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated income tax return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (A) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of such taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (A) its operating ~~costs and~~ expenses ~~of such Persons~~ 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, plus customary salary, bonus, severance and other benefits payable to current or former directors, officers, managers, employees or consultants (or, solely with respect to benefits, any 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; (iiiii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) its franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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) $9,375,000 and (y) 16.0% 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) $15,625,000 and (y) 27.0% 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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 parent companies that occurs after the Closing Date; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) to repurchase Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering 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 Section 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 from such Qualifying IPO and (y) 5% of the market capitalization of the Borrower and its Restricted Subsidiaries; provided that immediately before and immediately after giving effect to any such Restricted Payment, 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, director, manager or consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options; (j) 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 foregoing Restricted Payments, additional Restricted Payments in an aggregate amount not to exceed, together with the amount of Junior Financing Prepayments pursuant to Section 7.14(a)(iv), $12,500,000; (k) in addition to the foregoing Restricted Payments, additional Restricted Payments, so long 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 and (y) the Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b) does not exceed 4.75:1.00; (l) Restricted Payments to any direct or indirect parent entity to make cash payments in lieu of ~~issuing~~ the issuance of fractional ~~shares,~~ shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposeentity; (hm) the Borrower or any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may ~~pay cash~~ repurchase (or make Restricted Payments to any direct or indirect parent ~~the proceeds of which shall be used~~ entity to enable it to ~~pay cash~~repurchase) ~~in lieu of fractional~~ Equity Interests ~~in connection with any dividend, split or combination thereof, any Permitted Acquisition or any~~ upon the exercise of ~~warrants,~~ options or warrants or other securities convertible into or exchangeable for Equity ~~Interests; (i) redemptions, repurchases, retirements or other acquisitions of~~ Interests if such Equity Interests ~~(i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction~~ represent all or a portion of the exercise price of such options or ~~(ii) in consideration~~ warrants or other securities as part of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents);“cashless” exercise; and (n) ~~Restricted Payments to satisfy appraisal~~ the Borrower or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted ~~Payment~~ Subsidiary may pay any dividend or consummate any redemption within sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration ~~such Restricted Payment~~ or notice, the dividend or redemption notice would have complied with ~~another provision of this Section 7.06; provided that~~ the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)provisions hereof.

Appears in 1 contract

Sources: Second Lien Credit Agreement (TGPX Holdings I LLC)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~or incur any obligation (contingent or otherwise) to do so, except that: (a) each Restricted Subsidiary may make Restricted Payments to the US Borrower and to ~~the other~~ wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the US Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ Subsidiary and to each other owner of ~~Equity Interests~~ capital stock of such ~~Restricted~~ Subsidiary on a pro rata basis based on their relative ownership ~~interests of the relevant class of Equity Interests~~interests); (b) the US Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the ~~Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in~~ proceeds received from the ~~Equity Interests (other than Disqualified Equity Interests)~~ substantially concurrent issue of ~~the Borrower~~new shares of its common stock; (c) ~~so long as immediately after giving effect~~ the US Borrower may make Restricted Payments to ~~such Restricted Payment,~~ Holdings (i) ~~for all~~ (A) in an amount equal to the income taxes attributable to Holdings' Investment in the US Borrower and its Restricted ~~Payments made~~ Subsidiaries and other taxes attributable to the US Borrower and its Restricted Subsidiaries which are then due and payable and (B) in an amount up to $2,000,000 per calendar year to pay expenses; provided that such amounts shall reduce dollar-for-dollar the amounts permitted to be paid to Holdings pursuant to ~~this~~ Section ~~7.06(c~~7.02(j)(i) ~~in excess of C$55,000,000 which are attributable to clause~~ and (~~b) of the Available Amount~~ii), the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 respectively, and (ii) ~~for all~~ in an amount not in excess of the outstanding amount of loans previously made by the US Borrower to Holdings pursuant to Section 7.02(j) so long as the proceeds of such Restricted Payments ~~made pursuant~~ are substantially contemporaneously used by Holdings to ~~this Section 7.06(c~~repay such loans; (d) the US Borrower may make Restricted Payments to Holdings and the US Borrower and its Subsidiaries may make Restricted Payments in the form of Investments in Unrestricted Subsidiaries; provided that (i) no ~~Specified~~ Default or Event of Default shall have occurred and be continuing or would result therefrom~~, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not~~ ; (ii) after giving effect to ~~exceed the Available Amount immediately prior to the time of the making of~~ any such Restricted Payment; , the aggregate of all Restricted Payments made pursuant to this clause (d) on a cumulative basis from the Effective Date would not exceed the sum (without duplication) of (1) 50% of Adjusted Consolidated Net Income for any fiscal quarter after March 31, 2004 plus (2) $50,000,000; and (iii) and if Holdings has transferred 100% of the equity interests of the US Borrower to a wholly-owned Subsidiary of Holdings and no Event of Default exists under Section 8.01(k), then the US Borrower may make any Restricted Payment to such wholly-owned Subsidiary to the extent ~~constituting Restricted Payments~~that, had such transfer not occurred, the US Borrower ~~and the~~ could have made such Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));Payment to Holdings; and (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) 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 US Borrower and ~~the~~ its Restricted Subsidiaries may make ~~additional~~ Restricted Payments in the form of Investments in Unrestricted Subsidiaries in addition to those permitted under clause (d) above in an ~~aggregate~~ amount ~~since~~ equal to all cash dividends, cash returns and the ~~First Amendment Effective Date~~ fair market value of other distributions received in respect of such Investments (not to exceed the ~~greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence~~ initial amount of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), Investments in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Libbey Inc)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment, (i) for all~~ the Borrower may make Restricted Payments ~~made~~ with the cash proceeds contributed to its common equity from the Net Cash Proceeds of any Permitted Equity Issuance (other than Net Cash Proceeds constituting any Cure Amount), except to the extent such Net Cash Proceeds have been applied to make Investments pursuant to Section 7.02(o) or prepayments, redemptions, repurchases, defeasances or other satisfactions prior to maturity of any Junior Financing pursuant to Section 7.13 or to make previous Restricted Payments pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment); (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii))~~7.13; (e) ~~redemptions, repurchases, retirements or other acquisitions of Equity Interests in~~ the Borrower or any ~~of the~~ Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries Subsidiary may ~~pay (or~~ make Restricted Payments to ~~allow any direct or indirect parent thereof to pay~~Holdings (or, ~~so long as~~ in the case of sub-clause (iv), to the shareholders of a Restricted Subsidiary), so long as, with respect to any ~~payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ such Restricted ~~Payment is directly attributable~~ Payments made pursuant to ~~the Equity Interests~~ 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 ~~owned directly~~ is a member of a consolidated, combined or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value~~ unitary group of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower which Holdings (or any direct or indirect parent entity of Holdings) is the ~~Borrower)~~ parent for foreign, federal, state or ~~any~~ provincial or local income tax purposes, the proceeds of ~~its Restricted Subsidiaries~~ which will be used to pay the tax liability to each foreign, federal, state, provincial or local jurisdiction in ~~connection with the death~~respect of which a consolidated, ~~disability~~combined, ~~retirement~~ unitary or ~~termination of employment or service of any such Person~~ affiliated return is filed by Holdings (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent entity of Holdings) that includes the Borrower (and its Subsidiaries, to the extent ~~contributed to~~ such tax liability does not exceed the ~~Borrower~~lesser of (x) ~~to any future, present or former employee, officer, director, member of management or consultant (or~~ the ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of~~ taxes that would have been payable by the Borrower ~~or any of~~ and its Subsidiaries as a stand-alone group and (y) the actual tax liability of Holdings’ (or any direct or indirect parent entity of ~~the Borrower that occurs after the Closing Date~~Holdings) consolidated, ~~plus (z) the cash proceeds of key man life insurance policies received~~ combined, unitary or affiliated group, reduced by any such payments paid or to be paid directly by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreementits Subsidiaries; (~~g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i~~ii) the proceeds of which shall be used by Holdings to pay (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) (a) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $1,725,000 in any 12-month period plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise taxes and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses 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’s), the Borrower or a Restricted Subsidiary, to the extent such proceeds are received by the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ 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 ~~legal existence~~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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchase or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; (vii) the proceeds of which shall be used by Holdings to ~~pay (~~pay, or to make Restricted Payments to allow any direct or indirect parent thereof to pay) , management fees ~~and expenses related to any equity or debt offering~~ permitted by ~~this Agreement (whether or not successful~~Section 7.08(d);; and (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (viiviii) the proceeds of which shall be used by Holdings to ~~pay cash~~pay, ~~in lieu~~ or to make Restricted Payments to allow any direct or indirect parent thereof to pay, other than to Affiliates of ~~issuing fractional shares~~Holdings (other than Affiliates that are bona fide investment banks), ~~in connection with the exercise~~ a portion of ~~warrants~~any customary fees and expenses related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), ~~options~~ or ~~other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for~~ any ~~taxable period for which the Borrower and/or~~ unsuccessful debt offering by any ~~of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent of ~~Borrower is the common parent (a “Tax Group”)~~Holdings, ~~the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are~~ in each case directly attributable to the ~~income~~ operations of the Borrower ~~and/or~~ 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 Section 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 from such Qualifying IPO; provided that ~~(A) the amount of~~ immediately before and immediately after giving effect to any such Restricted ~~Payments for any taxable period~~ Payment, no Default or Event of Default shall ~~not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would~~ have ~~paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years~~ occurred and ~~(B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall~~ be ~~permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose~~continuing; (h) ~~the Borrower or any of the Restricted Subsidiaries may pay cash (or make~~ Restricted Payments ~~to any direct~~ (including payments on stock appreciation rights) made on the Closing Date or ~~indirect parent the proceeds of which shall be used to enable it to pay cash)~~ within 60 days thereafter, in ~~lieu of fractional Equity Interests~~ each case in connection with ~~any dividend, split or combination thereof, any Permitted~~ the Transactions and in accordance with the Acquisition ~~or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests~~Agreement; (i) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests ~~(i) deemed~~ of Holdings, the Borrower or any Restricted Subsidiary to ~~occur on~~ fund the ~~exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration~~ payment of withholding or similar ~~taxes~~ Taxes that are payable by any future, present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or ~~their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses~~any spouse, former ~~spouses~~spouse, ~~domestic partners and former domestic partners)~~successor, ~~including deemed repurchases~~ executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock ~~options and any cash payment in respect of amounts described in the foregoing clause (ii)~~options; (j) in addition to the foregoing Restricted ~~Payments and~~ 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 and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 therefrom and (iiy) ~~1.5% of Consolidated~~ the Total ~~Assets determined~~ Leverage Ratio as at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day end of the most recently ended ~~Test Period on or prior~~ fiscal quarter of the Borrower for which financial statements are available to ~~the date of determination is less than or equal to~~ does not exceed 5.00:1.00;; and (k) ~~after a Qualifying IPO,~~ Restricted Payments consisting of the ~~declaration and payment~~ proceeds of ~~dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to~~ any ~~of its parents to permit such parent to pay such dividends~~Disposition permitted under Section 7.05(n), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent ~~Not Otherwise Applied; (m)~~ made in accordance with the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsAcquisition Agreement. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Second Lien Credit Agreement (GMS Inc.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to ~~the other~~ Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly-owned Restricted Subsidiary, to the Borrower and any ~~other~~ Restricted ~~Subsidiaries~~ 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~~interests); (b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of ~~the Borrower~~such Person; (c) the Borrower may make Restricted Payments with the cash proceeds contributed to its common equity from the net cash proceeds of any Permitted Equity Issuance, so long ~~as immediately after giving effect~~ as, with respect to any such Restricted ~~Payment~~Payments, ~~(i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 Section 7.02(e) and 7.02(m))~~7.02, ~~Section 7.03, Section~~ 7.04, ~~Section 7.05 (other than Section 7.05(e))~~ 7.08 or ~~Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii));~~7.14; US\OMARAR\2185v1621.23 9947677.1410 (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to Holdings, so long as, with respect to any ~~direct~~ such Restricted Payments, no Event of Default under Section 8.01(a), (f) or ~~indirect parent of the Borrower~~(g) shall have occurred and be continuing or would result therefrom: (i) the proceeds of which ~~shall~~ will be used to pay (the tax liability in respect of consolidated, combined, unitary or ~~make Restricted Payments to allow~~ affiliated returns for the relevant jurisdiction of Holdings and/or any direct or indirect parent ~~thereof~~ entity of Holdings attributable to the Borrower and 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 a Restricted Payment to its direct or indirect parent to enable it to pay) (A) its operating ~~costs and~~ expenses ~~of such Persons~~ 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 $2,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Borrower and its Restricted ~~Subsidiaries~~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; (iiiii) the proceeds of which shall be used by Holdings to pay its (or and to make a Restricted ~~Payments~~ Payment to ~~allow any~~ its direct or indirect parent ~~thereof~~ to enable it to pay) franchise and similar ~~Taxes,~~ taxes and other ~~fees and expenses, required~~ expenses necessary to maintain its corporate existence; (iv) the proceeds of which will be used (but only if required to be so used pursuant to a binding agreement, unless no Default shall have occurred and be continuing or would result therefrom) to repurchase the Equity Interests of Holdings (or to make a Restricted Payment to its direct or indirect parent to enable it to repurchase its Equity Interest) 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 (A) $15,000,000 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 calendar year, the amount not utilized in the prior calendar year or years up to a maximum of $5,000,000; 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’s), the Borrower or a Restricted Subsidiary, plus (B) ~~corporate~~ to the extent contributed in cash to the common equity of the Borrower, the Net Proceedsnet proceeds from the sale of Equity Interests of any of the Borrower’s direct or ~~legal existence~~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; (~~iii~~v) the proceeds of which are applied to ~~finance~~ the purchase or other acquisition by Holdings of all or substantially all of the property and assets or business of any ~~Investment~~ 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 US\OMARAR\2185v1621.23 9947677.1410 had been made by the Borrower, it would have constituted a “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) ~~such Persons~~ Holdings shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a its Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ purchaser or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02other acquisition; (ivvi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and warrants; and (vii) the proceeds of which shall be used by Holdings to ~~pay (~~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 related to any unsuccessful equity offering by Holdings (or any direct or indirect parent thereof), or any unsuccessful debt offering ~~permitted~~ by ~~this Agreement (whether~~ any direct or ~~not successful); (v) the proceeds~~ indirect parent of ~~which (A) shall be used to pay customary salary~~Holdings, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in ~~connection therewith to the extent such salaries, bonuses and other benefits are~~ each case directly attributable to the ~~ownership or operation~~ operations of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)Subsidiaries; (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (jf) in addition to the foregoing Restricted ~~Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom~~Payments, the Borrower ~~and the Restricted Subsidiaries~~ may make additional Restricted Payments to Holdings in an ~~aggregate amount since~~ unlimited amount, provided that (in the ~~First Amendment Effective Date not to exceed~~ case of this Section 7.06(f)) the ~~greater of~~ Restricted Payment Conditions have been satisfied; (g) Restricted Payments made (i) ~~C$50,000,000 and~~ on the Closing Date to consummate the Transaction, (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as out of the ~~last day~~ cash proceeds received by the Borrower in respect of working capital adjustments or purchase price adjustments pursuant to the Acquisition Agreement (provided that the condition set out in Section 4.01(b) would have been satisfied on the Closing Date if the actual amount of the ~~most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends~~ Equity Contribution on the ~~Borrower’s common stock (and~~ Closing Date had been reduced by the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making amount of any Restricted Payment ~~within sixty~~ made in reliance on this clause (60ii)) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (Biii) in order to satisfy indemnity and other similar obligations under the ~~First Amendment Transaction~~ Acquisition Agreement).; (h) repurchases of Equity Interests to fund the payment of withholding or similar Taxes that are payable by any future, present or former employee, director, manager or consultant (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) in connection with the exercise of stock options; and (i) Restricted Payments on the Equity Interests of the Borrower (or Restricted Payments to Holdings or any other direct or indirect parent company of the Borrower to fund a Restricted Payment on such company’s Equity Interests) following consummation of a public offering of the Borrower’s Equity Interests or the Equity Interests of Holdings or any other direct or indirect parent company of the Borrower, of up to 6% per annum of the net cash proceeds received by or contributed to the Borrower in or from any such public offering; 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. US\OMARAR\2185v1621.23 9947677.1410

Appears in 1 contract

Sources: Credit Agreement (At Home Group Inc.)

Restricted Payments. ~~Declare~~ The Parent 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, or Incur any obligation (contingent or otherwise) to do so, except: (a) ~~each~~ the Parent Borrower may (i) declare and pay dividends with respect to its Capital Stock payable solely in shares of its Capital Stock (or options, warrants or other rights to acquire its Capital Stock) or (ii) make other distributions or payments payable solely in shares of its Capital Stock (or options, warrants or other rights to acquire its Capital Stock); (b) any Wholly Owned Subsidiary may declare and pay Restricted Payments to its immediate parent; (c) any non-Wholly Owned Subsidiary may declare and pay Restricted Payments ratably with respect to its Capital Stock; (d) the Parent Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans, restricted stock plans or other benefit plans or contracts for current or former management or employees of the Parent Borrower and its Restricted Subsidiaries; (e) the Parent Borrower may repurchase its Capital Stock and may declare and pay cash dividends to the holders of its Capital Stock; provided that if the Consolidated Leverage Ratio on a pro forma basis immediately after giving effect to such repurchase or dividend declaration (with the reference period for Consolidated EBITDA being the most recent period of four consecutive fiscal quarters for which the relevant financial statements have been (or were required to be) delivered pursuant to Section 5.1(a) or (b), as applicable) is (i) greater than or equal to 2.75 to 1.0, the aggregate amount of such repurchases and dividend declarations pursuant to this Section 6.8(e)(i) shall not exceed (A) $100,000,000 per fiscal year plus (B) an amount equal to the portion, if any, of the Available Amount on such date that the Parent Borrower elects to apply to this Section 6.8(e)(i)(B); and (ii) less than 2.75 to 1.0, the aggregate amount of such repurchases and dividend declarations pursuant to this Section 6.8(e)(ii) shall be unlimited; and provided, further, that any such cash dividends shall be paid within 60 days after the date of declaration thereof; and (f) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments to the ~~Borrower and~~ extent required by the terms of its joint venture or similar agreements relating to ~~the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a~~ non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) Subsidiaries; provided that no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments shall be permitted by this clause (f~~), not to exceed the greater of (w~~) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) to finance unless 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith ~~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~~ is also expressly permitted ~~under~~ by Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions6.5. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (SPX Corp)

Restricted Payments. ~~Declare~~ The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, ~~except:~~ except (a) ~~each Restricted Subsidiary may make Restricted Payments to~~ the Borrower may declare and pay dividends with respect to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of its Equity Interests payable solely in additional shares of ~~such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);~~ its common stock, (b) ~~the Borrower and each of the~~ (i) wholly-owned Restricted Subsidiaries may declare and ~~make dividend payments or other distributions payable solely in the~~ pay dividends ratably with respect to their Equity Interests and (~~other than Disqualified~~ ii) Restricted Subsidiaries which are not wholly-owned may declare and pay dividends ratably with respect to their Equity ~~Interests) of the Borrower; (c)~~ Interests so long as ~~immediately~~ no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would arise after giving effect ~~to such Restricted Payment,~~ (~~i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated~~ including giving effect on a Pro Forma Basis) thereto, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted Subsidiaries, (d) the Borrower may declare and pay dividends with respect to taxes ratably allocated by the Parent to the business of the Borrower and its Restricted Subsidiaries, (e) distributions of property by a Restricted Subsidiary to the Borrower in connection with a transaction permitted by Section 6.04(h), (f) Restricted Payments in an aggregate amount not to exceed the greater of (x) $225,000,000 and (y) an amount equal to 75% of Consolidated EBITDA as of the most recently ended period of four consecutive fiscal quarters; provided that the Borrower may make additional Restricted Payments pursuant to this clause (f) if (i) the RP Leverage Ratio as of the last day of the most recently ended ~~Test Period on or~~ fiscal quarter of the Borrower immediately prior to the date ~~of determination~~ such Restricted Payment is made was no greater than ~~or equal~~ 3.50 to ~~2.00:1.00 and~~ 1.0, (ii) ~~for all~~ the RP Leverage Ratio is no greater than 3.50 to 1.0 calculated on a pro forma basis giving effect to such Restricted ~~Payments made pursuant to this Section 7.06(c~~Payment and (iii) no ~~Specified~~ Default ~~shall have~~ or Event of Default has occurred and be is continuing prior to making such Restricted Payment or would ~~result therefrom~~arise after giving effect (including giving effect on a Pro Forma Basis) thereto, ~~in each case~~ (g) the Borrower and ~~the~~ its Restricted Subsidiaries may make any other Restricted ~~Payments~~ Payment at any time in an amount not to exceed the ~~Available Amount immediately prior to the~~ Cumulative Retained Excess Cash Flow at such time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as ~~in the case~~ (i) no Default or Event of ~~any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of~~ Default has occurred and is continuing prior to making such Restricted Payment ~~is directly attributable to the Equity Interests of the Borrower owned directly~~ or ~~indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower~~ would arise after giving effect (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated including giving effect on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) thereto and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is ~~the common parent (a “Tax Group”)~~in compliance, the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma ~~Basis) plus additional unlimited amounts so long as immediately~~ Basis after giving effect to ~~any~~ such ~~additional unlimited amounts of~~ Restricted Payment, with the ~~Total Net Leverage Ratio (calculated on a Pro Forma Basis)~~ financial covenant contained in Section 6.11 recomputed as of the last day of the most recently ended ~~Test Period on or prior to~~ fiscal quarter of the ~~date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO~~Borrower for which financial statements are available, ~~the declaration and payment of dividends~~ as if such Restricted Payment had occurred on the ~~Borrower’s common stock~~ first day of each relevant period for testing such compliance, (~~and~~ h) the Borrower may make a Restricted Payment with the proceeds of the Initial Term Loans on the Effective Date so long as such Restricted Payment is used to repay interim financing incurred by the Borrower and its ~~restricted~~ Restricted Subsidiaries ~~may pay dividends to any of its parents to permit such parent to pay such dividends),~~ in connection with closing the ~~aggregate in any calendar year of up to the sum of~~ Columbia Acquisition and (i) ~~6.00%~~ Restricted Payments in an aggregate amount not to exceed the amount of ~~the Net Cash Proceeds received by or~~ net proceeds contributed to the Borrower as cash capital contributions by Parent or ~~a Restricted Subsidiary in or from~~ any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributionsparent entity. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Ugi Corp /Pa/)

Restricted Payments. ~~Declare or make~~‌ (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted ~~Payment~~Payment unless at the time of, ~~except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower~~ and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to to, such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower:Payment:‌ (i) ~~the proceeds of which shall be used to pay (~~no Default or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and occur as a consequence thereof; (ii) ~~1.5~~the Issuer could, after giving pro forma effect to such Restricted Payment as if it had been made at the beginning of the applicable four-quarter reference period, Incur at least $1.00 of additional Indebtedness pursuant to Section 5.11(a); and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date pursuant to this Section 5.10(a) and all Restricted Payments made by the Issuer and its Restricted Subsidiaries pursuant to clauses 5.10(b)(i), 5.10(b)(iv), 5.10(b)(viii) and 5.10(b)(xii) of Section 5.10(b), is less than the sum, without duplication, of: (A) 50% of Consolidated ~~Total Assets determined~~ Net Income for the period (taken as one accounting period) from April 1, 2012 to the end of the Issuer’s most recently ended fiscal quarter for which annual or quarterly financial statements are available at the time of ~~incurrence~~ such Restricted Payment (or, if Consolidated Net Income for the relevant period is a deficit, minus 100% of the deficit); plus (B) 100% of the aggregate net cash proceeds, or Fair Market Value of Property, received by the Issuer or any Restricted Subsidiary since the Issue Date as a contribution to its common equity capital, or from the issue or sale of Equity Interests of the Issuer or any Restricted Subsidiary or Deeply Subordinated Indebtedness, or from the issue or sale of convertible or exchangeable Disqualified Stock of the Issuer or any Restricted Subsidiary or convertible or exchangeable debt securities of the Issuer or any Restricted Subsidiary, in each case that have been converted or exchanged into Equity Interests of the Issuer or any Restricted Subsidiary, other than net cash proceeds or Fair Market Value of Property received from the issue or sale of such ~~Indebtedness~~ Interests or convertible or exchangeable Disqualified Stock or debt securities to a Subsidiary of the Issuer; plus‌ (~~calculated on a Pro Forma Basis~~C) ~~plus additional unlimited amounts so long as immediately~~ to the extent that any Investment (other than Permitted Investments) that was made after ~~giving effect to any such additional unlimited amounts of Restricted Payment~~the Issue Date is sold for cash or otherwise liquidated or repaid, the ~~Total Net Leverage Ratio~~ lesser of (~~calculated on~~ x) the cash return of capital with respect to such Investment (less the cost of disposition, if any), and (y) the initial amount of such Investment; plus (D) to the extent that any Unrestricted Subsidiary designated as such after the Issue Date is redesignated as a ~~Pro Forma Basis~~Restricted Subsidiary, the lesser of (x) the Fair Market Value of the Issuer’s Investments in such Subsidiary as of the ~~last day~~ date of such redesignation, and (y) such Fair Market Value as of the ~~most recently ended Test Period~~ date on which such Subsidiary was originally designated as an Unrestricted Subsidiary; plus (E) 100% of any dividends or ~~prior~~ distributions received in cash by the Issuer or a Restricted Subsidiary from an Unrestricted Subsidiary after the Issue Date, to the extent not already included in Consolidated Net Income for the applicable period. (b) The provisions of Section 5.10(a) will not prohibit:‌ (i) the payment of any dividend or other distribution within 60 days of the declaration of the dividend or distribution, if at the date of ~~determination is less than~~ declaration or ~~equal~~ notice such dividend or distribution, would have complied with the provisions of this Indenture;‌ (ii) the payment by a Restricted Subsidiary, directly or through one or more Restricted Subsidiaries, of intercompany dividends or other distributions to ~~5.00:1.00~~the Issuer or any Guarantor; (kiii) the making of a Restricted Payment or the redemption, repayment, repurchase, defeasance or other acquisition of Subordinated Indebtedness or Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the net cash proceeds of, a substantially concurrent sale or issuance of Equity Interests (other than to a Restricted Subsidiary of the Issuer) or Deeply Subordinated Indebtedness of the Issuer or a substantially concurrent capital contribution; provided that proceeds of the issuance of Equity Interests and capital contributions will be included under Section 5.10(a)(iii)(B) of the first paragraph of this covenant only to the extent they are not applied as described in this Section 5.10(b)(iii);‌ (iv) the redemption, repayment, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (A) in the event of an Asset Sale, at a purchase price not greater than 100% of the principal amount of such Subordinated Indebtedness (plus accrued and unpaid interest thereon) from Net Available Proceeds remaining after an Asset Sale Offer made pursuant to Section 5.14, or (B) in the event of a ~~Qualifying IPO~~Change of Control, at a purchase or redemption price no greater than 101% of the principal amount of such Subordinated Indebtedness (plus any accrued but unpaid interest thereon), in each case, in accordance with provisions similar to those set out in Sections 5.14 or 5.15, as applicable; provided, however, that, prior to or simultaneously with such redemption, repayment, repurchase, defeasance, acquisition or retirement, the Issuer has made the Change of Control Offer or Asset Sale Offer, if required, with respect to the Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection with such Change of Control Offer or Asset Sale Offer;‌ (v) the repurchase, redemption or other acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary held by any current or former officer, director, employee or consultant (or their transferees, estates or beneficiaries) of the Issuer or any Restricted Subsidiary pursuant to any equity subscription agreement, shareholder agreement, employment agreement, stock option plan, equity incentive or other plan or similar agreement, in each case in effect as of the Issue Date, in an aggregate principal amount not to exceed $5 million in each fiscal year of the Issuer (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $7.5 million in any calendar year); (vi) the redemption, repayment, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (other than Deeply Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary in exchange for, or out of the net cash proceeds from a substantially concurrent Incurrence of, Permitted Refinancing Indebtedness; (vii) the declaration and payment of ~~dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay~~ regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer or any of its ~~parents to permit such parent to pay such dividends),~~ Restricted Subsidiaries issued after the date of this Indenture in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPOaccordance with Section 5.11; (lviii) ~~Restricted Payments that are made with Excluded Contributions~~ the repurchase of Equity Interests or other securities deemed to occur upon the exercise of stock options, warrants or similar rights to the extent ~~Not Otherwise Applied~~such Equity Interests or other securities represent a portion of the exercise price of those stock options, warrants or similar interests;‌ (ix) the repurchase by the Issuer of Equity Interests provided that the aggregate consideration paid or payable pursuant to this clause (ix) shall not exceed $20 million per annum; (mx) the ~~distribution~~purchase, ~~by dividend~~ redemption, acquisition, cancellation or ~~otherwise,~~ other retirement for nominal value per right of ~~shares~~ any rights granted to all the holders of ~~capital stock of, or Indebtedness owed~~ Capital Stock of the Issuer pursuant to any shareholders' rights plan adopted for the ~~Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets~~ purpose of ~~which are cash and Cash Equivalents)~~protecting shareholders from unfair takeover tactics; (nxi) ~~Restricted Payments~~ payments to ~~satisfy appraisal~~ dissenting shareholders (A) pursuant to applicable law or (B) in connection with the settlement or other ~~dissenters’ rights,~~ satisfaction of legal claims made pursuant to or in connection with a consolidation, ~~amalgamation, merger,~~ merger or transfer of assets ~~or acquisition~~ in connection with a transaction that ~~complies with Section 7.02 or Section 7.04~~is not prohibited by this Indenture; (oxii) ~~redemptions~~ the making of cash payments in lieu of the issuance by the Issuer of fractional shares in connection with stock dividends, splits or business combinations or the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests that are not derivative securities; and‌ (xiii) other Restricted Payments made after the Issue Date in an aggregate principal amount not to exceed $75 million; provided, however, that at the time of, and after giving effect to, clauses (i), (iv), (vi), (vii), (ix) and (xiii), no Default or Event of Default shall have occurred and be continuing.‌ (c) For purposes of determining compliance with this Section 5.10, in the event that a transaction meets the criteria of more than one of the clauses in Section 5.10(b), the Issuer may, in its sole discretion, divide and classify (or later reclassify in whole or in ~~part of~~ part, from time to time in its sole discretion) such transaction in any ~~of its Equity Interests for another class of its Equity Interests or~~ manner that complies with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)5.10.

Appears in 1 contract

Sources: Trust Indenture

Restricted Payments. ~~Declare or make~~The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, ~~except:~~ except (a) ~~each Restricted Subsidiary may~~ to make ~~Restricted Payments to the Borrower and to the other Restricted Subsidiaries (and,~~ dividends payable solely in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant same class of Equity ~~Interests);~~ Interest of such Person; (b) ~~the Borrower and each of the Restricted Subsidiaries may declare and~~ to make ~~dividend payments~~ dividends or other distributions payable ~~solely in~~ to the ~~Equity Interests~~ Credit Parties (~~other than Disqualified Equity Interests) of the Borrower;~~ directly or indirectly through its Subsidiaries); (c) ~~so long as immediately after giving effect to such Restricted Payment,~~ the Borrower may make (i) ~~for all Restricted Payments made~~ any payment of cash in lieu of fractional shares pursuant to ~~this~~ the terms of any Permitted Bond Hedge Transaction or any convertible Indebtedness permitted pursuant to Section ~~7.06(c~~6.1(h) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) ~~for all Restricted Payments made~~ any cash settlement upon conversion of convertible Indebtedness permitted pursuant to ~~this~~ Section ~~7.06(c~~6.1(h) ~~no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments~~ in an amount not to exceed the ~~Available Amount immediately prior to the time of the making~~ principal amount of such ~~Restricted Payment;~~ convertible Indebtedness so converted, 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 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) ~~the proceeds of which shall be used to pay (~~no Default or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 therefrom and (ii) ~~1.5% of Consolidated Total Assets determined at~~ the ~~time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately~~ Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 5.9 after giving effect to any such ~~additional~~ payment: (A) the Credit Parties may purchase shares (or the equivalent, or rights to acquire shares or the equivalent) held by directors, officers and employees of such Credit Party; (B) the Credit Parties may make regularly scheduled interest payments with respect to Subordinated Debt; and (C) (i) the Credit Parties may make unlimited ~~amounts~~ Restricted Payments (subject to the terms of any applicable subordination agreement); provided that, after giving effect to any Restricted ~~Payment~~Payment made pursuant to this clause (C)(i), ~~the Total Net Leverage Ratio (calculated~~ on a Pro Forma Basis, (1) as there is at least $35,000,000 of Revolver Availability and (2) the ~~last day of the most recently ended Test Period on or prior to the date of determination~~ Consolidated Net Leverage Ratio is less than or equal to ~~5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends~~ 3.00 to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO 1.00 and (ii) ~~6.00% of the market capitalization of~~ if the Borrower at does not meet the ~~time of such Qualifying IPO;~~ criteria set forth in clause (lC)(i) above, the Borrower may make Restricted Payments ~~that are made~~ with ~~Excluded Contributions~~ respect to ~~the extent Not Otherwise Applied; (m) the distribution, by dividend~~ share repurchases of any class of Equity Interest of any Credit Party or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its ~~Equity Interests for another~~ Subsidiaries and dividends or distributions on account of any shares of any class of Equity Interest of any Credit Party or any of its ~~Equity Interests or with proceeds~~ Subsidiaries in an aggregate amount, from ~~substantially concurrent equity contributions or issuances~~ the Sixth Amendment Effective Date through the Maturity Date, not to exceed (x) $50,000,000 minus (y) the aggregate amount of ~~new Equity Interests~~Permitted Investments made in reliance on item (ii) of the proviso to clause (k) of the definition of “Permitted Investments”; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p1) ~~the Original Transaction and~~ any Restricted Payments made pursuant to the above clause (C)(i) shall not be included in the limit provided in this clause (C)(ii) and (2) after giving effect ~~the Original Transaction; (q) the making of~~ to any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments made pursuant to ~~such other provision when so made; and~~ this clause (~~r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders~~ C)(ii), on a Pro Forma Basis, there is at least $35,000,000 of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)Revolver Availability.

Appears in 1 contract

Sources: Credit Agreement (Osi Systems Inc)

Restricted Payments. ~~Declare or make,~~ Neither the Lead Borrower nor any of the Restricted Subsidiaries shall directly or indirectly, declare or make any Restricted Payment, except: (a) the Borrowers and each other Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Borrowers, and ~~to the~~ other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the ~~Borrower~~ Borrowers and any other Restricted ~~Subsidiaries 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 Lead Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions~~ Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of ~~the Borrower~~such Person; (c) Restricted Payments made on or after the Closing Date in connection with the Transactions, including the settlement of claims or actions in connection with the Acquisition, or to satisfy indemnity or other similar obligations or any other earnouts, purchase price adjustments, working capital adjustments and any other payments under the Merger Agreement; (d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~in each case~~ the Lead Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to ~~exceed the Available Amount immediately prior~~ 3.25 to ~~the time of the making of such Restricted Payment~~1.00; (de) to the extent constituting Restricted Payments, the Lead Borrower and ~~the~~ its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of ~~Section~~ Sections 7.02 (other than ~~Section~~ Sections 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05~~ 7.04 or 7.07 (other than ~~Section 7.05(e)) or Section 7.08 (other than Section 7.08(i~~Sections 7.07(e) and ~~7.08(m)(ii~~(j)); (ef) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in ~~the~~ any Borrower (or any ~~of the~~ direct or indirect parent thereof) or any Restricted ~~Subsidiaries~~ Subsidiary 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 ~~warrants or similar rights~~warrants; (fg) the Lead Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments to allow the Borrowers or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of ~~the Borrower~~ such Restricted Subsidiary (or of the Borrowers or any other such direct or indirect parent thereof) ~~held by~~ from any future, present or former ~~officers~~employee, ~~directors~~officer, ~~employees~~director, ~~members of management and consultants~~ manager, member, partner, independent contractor or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or Immediate Family Members) of ~~the Borrower~~ such Restricted Subsidiary (or the Borrowers or any other direct or indirect parent of ~~the Borrower~~such Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or termination of employment ~~or service~~ of any such Person or pursuant to any employee or director equity plan, employee, manager, officer, member, partner, independent contractor or director stock option plan or any other employee, manager, officer, member, partner, independent contractor or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, officer, director, member, partner, independent contractor or consultant of such Restricted Subsidiary (or ~~a breach~~ the Borrowers or any other direct or indirect parent thereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower~~ Restricted Payments made pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ $40,000,000 in any calendar year (~~it being understood that any~~ which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year or $100,000,000 subsequent to the ~~immediately succeeding three calendar years~~consummation of a Qualified IPO, respectively); ~~provided~~ provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed~~ exceed: (yi) to the extent contributed to the Lead Borrower, the net cash proceeds ~~received by the Borrower or any of the Restricted Subsidiaries~~ from the sale of Equity Interests (other than Disqualified Equity ~~Interests, Excluded Contributions~~ Interests or ~~amounts that increased the Available Amount~~Designated Equity Contributions) of any of the ~~Borrower or any~~ Borrowers’ direct or indirect parent ~~of the Borrower (to the extent contributed to the Borrower)~~ companies, in each case to any future, present or former ~~employee~~employees, ~~officer~~officers, ~~director~~members of management, ~~member of management~~ managers, partners, independent contractors, directors or ~~consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ their respective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family Members) of the ~~Borrower or~~ Lead Borrower, any of its Subsidiaries or any of its direct or indirect parent ~~of the Borrower~~ companies that occurs after the Closing Date, ~~plus~~ to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (zii) the net cash proceeds of key man life insurance policies received by the Lead Borrower or ~~the~~ its Restricted ~~Subsidiaries after the Closing Date~~Subsidiaries; ~~provided, further, that~~ less (1iii) 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 Lead Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any~~ exceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(v), (x) the greater of (i) $65,000,000 and (ii) 40% of LTM Consolidated EBITDA, plus (y) subject to, solely in the case of the portion of the ~~aggregate increase contemplated by clauses~~ Cumulative Credit attributable to clause (yb) thereof, no Event of Default under Sections 8.01(a) or (f) with respect to any Borrower having occurred and ~~(z) above in any calendar year and (2) cancellation of Indebtedness owing to~~ continuing or resulting therefrom, the ~~Borrower or any Restricted Subsidiary from any future~~portion, ~~present or former employee~~if any, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the ~~foregoing) of~~ Cumulative Credit on such date that the Lead Borrower ~~or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed~~ elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement~~paragraph; (gi) the ~~Borrower and the Restricted Subsidiaries~~ Borrowers may make Restricted Payments to any direct or indirect parent of the ~~Borrower~~Borrowers: (i) ~~the proceeds of which shall be used~~ to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ its organizational, operating costs and other costs and expenses ~~of such Persons~~ (including, without limitation, expenses related to auditing or other accounting or tax reporting matters) 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,~~ business and attributable to the ownership or operations of Holdings, the Lead Borrower and ~~its~~ the Restricted Subsidiaries, any costs, expenses and liabilities incurred in connection with any litigation or arbitration attributable to the ownership or operations of Holdings, the Lead Borrower and 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 Holdings, the Lead Borrower and the Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company; (ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise ~~and similar Taxes,~~ Taxes and other ~~fees~~ fees, Taxes and ~~expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’) corporate ~~or legal~~ existence; (iii) with respect to any taxable period for which the Lead Borrower is a disregarded entity or partnership for U.S. federal income tax purposes, in the form of permitted tax distributions to each direct or indirect owner of the Lead Borrower (as applicable) which shall be equal to the product of (X) such owner’s direct or indirect allocable share of the taxable income of the Lead Borrower or attributable to the Lead Borrower if the Lead Borrower is a disregarded entity (calculated as if the Lead Borrower were a partnership for U.S. federal income tax purposes) for such taxable period, provided that any items of income, gain, loss or deduction shall be determined without regard to any adjustments pursuant to Section 743 of the Code and (Y) the highest combined marginal federal, state and local income tax rate applicable to any direct or indirect equity owner of the Lead Borrower for such taxable period (taking into account the character (long-term capital gain, qualified dividend income, tax-exempt income, etc.) of the current period taxable income); provided that any such distributions shall be made on a pro rata basis; (iv) 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) such ~~Persons~~ parent shall, ~~promptly~~ immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or a the Restricted ~~Subsidiary~~ Subsidiaries or (2) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ 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 ~~Investment~~ Permitted Acquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02~~6.11; (ivv) the proceeds of which shall be used to pay customary salary, bonus, indemnity and other benefits payable to future, present or former officers, directors, managers, members, partners, consultants, independent contractors or employees of Holdings, the Lead Borrower or any direct or indirect parent company of the Borrowers to the extent such salaries, bonuses, indemnity and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries; (vi) the proceeds of which shall be used by Holdings or the Borrowers 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 equity or debt ~~offering permitted~~ offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this Agreement (whether or not successful)~~; (v)~~ ; provided that any such transaction was in the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation good faith judgment of the Lead Borrower intended to be for the benefit of the Lead Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement;Subsidiaries; and (vii) the proceeds of which shall be used by Holdings or the Lead Borrower to pay ~~cash, 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 such Persons; and (viii) for~~ to make Restricted Payments to allow any ~~taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a~~ direct or indirect parent thereof to pay) amounts payable pursuant to the Support and Services Agreement (including 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 Lead Borrower is to the ~~common parent (~~Lenders when taken as a ~~“Tax Group”~~whole, as compared to the Support and Services Agreement as in effect immediately prior to such amendment or replacement), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only solely to the extent ~~that cash distributions were made~~ such amounts are not paid directly by ~~such Unrestricted Subsidiary to Borrower~~ Holdings or ~~any of~~ its ~~Restricted Subsidiaries for such purpose~~Subsidiaries; (hj) payments made or expected to be made by the Lead Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar Taxes payable upon or in connection with the exercise or vesting of Equity Interests or any other equity award with respect to any future, present or former employee, director, manager, officer, partner, independent consultant or 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 Lead Borrower or any Restricted Subsidiary may (i) pay cash ~~(or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash)~~ in lieu of fractional Equity Interests in connection with any dividend, ~~split~~ distribution, split, merger, consolidation, amalgamation or combination ~~thereof,~~ thereof or any Permitted Acquisition or and (ii) honor any ~~exercise~~ conversion request by a holder of ~~warrants, options or other securities~~ convertible ~~into or exchangeable for Equity Interests~~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; (il) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments after a Qualified IPO and so long as no Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, (i) any Restricted Payment by the Borrowers or any other direct or indirect parent of the Borrowers 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 7.00% per annum of the net proceeds received by (or contributed to) the Lead Borrower and ~~the~~ its Restricted Subsidiaries ~~may make additional~~ from such Qualified IPO and (B) Restricted Payments in an aggregate amount ~~since the First Amendment Effective Date~~ per annum not to exceed ~~the greater of (i) C$50,000,000 and (ii) 1.5~~7.00% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise AppliedMarket 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 claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or Section 7.04; (o) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock 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 Lead Borrower or a Restricted Subsidiary ~~by,~~ 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,~~ Subsidiaries the primary assets of which are cash ~~and~~ and/or Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) ~~the Original Transaction and~~ Restricted Payments that are made in (i) an amount equal to ~~effect~~ the ~~Original Transaction;~~amount of Excluded Contributions previously received and the Lead 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 acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent Not Otherwise Applied; and (q) the ~~making~~ payment of any ~~Restricted Payment~~ dividend or other distribution or the consummation of any irrevocable redemption within ~~sixty (60)~~ 60 days after the date of declaration ~~thereof~~of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of ~~such~~ declaration ~~such Restricted Payment~~ or notice, the dividend or other distribution or redemption payment would have complied with ~~another provision~~ the provisions of this Agreement. For purposes of determining compliance with this Section 7.06~~; provided~~ , in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Lead 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 (giving pro forma effect to the making of such portion of such Restricted Payment), the Lead Borrower, in its sole discretion, may classify such portion of such Restricted Payment ~~will reduce capacity for Restricted Payments~~ (and any obligations in respect thereof) as 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 more of the other ~~provision when so made; and (r)~~ clauses of this Section 7.06 and if any such test would be satisfied in any subsequent fiscal quarter following the ~~First Amendment Transactions and Restricted Payments made~~ relevant date of determination, then such reclassification shall be deemed to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)have automatically occurred at such time.

Appears in 1 contract

Sources: Credit Agreement (Bumble Inc.)

Restricted Payments. ~~Declare or make~~Neither the Borrowers nor any Restricted Subsidiary shall at any time, directly or indirectly, declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (a) each Restricted Subsidiary may make Restricted Payments to the ~~Borrower~~ Company, any of the Company’s Subsidiaries that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the ~~other~~ type of Equity Interest in respect of which such Restricted ~~Subsidiaries~~ Payment is being made (and, in the case of a Restricted Payment by a non-~~Wholly Owned~~ wholly owned Restricted Subsidiary, to the ~~Borrower~~ Borrowers and ~~any other~~ their Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests and to the extent required under the Organizational Documents of any non-wholly owned Restricted Subsidiary, based on the ~~relevant class of Equity Interests~~formulation required in such Organizational Documents); (b) the ~~Borrower~~ Company and each ~~of the~~ Restricted ~~Subsidiaries~~ 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)~~ of ~~the Borrower~~such Person; (c) ~~so long as immediately~~ the Company may pay any dividend within 60 days after ~~giving effect~~ the date of the declaration thereof if at the date of such declaration or notice, the payment of such dividend would have complied with the provisions of this Section 8.07; (d) a Restricted Subsidiary may issue Equity Interests to ~~such~~ the extent constituting an Asset Sale permitted by Section 8.01 or Investment permitted by Section 8.06 (other than Section 8.06(o)); (e) a Restricted ~~Payment~~Subsidiary may issue Equity Interests in additional, newly formed Restricted Subsidiaries; (f) the Company and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 5.0% of Borrower Group EBITDA for ~~all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of~~ the ~~Available Amount, the Fixed Charge Coverage Ratio~~ most recently ended Test Period (calculated on a Pro Forma Basis) as at the time of declaration or notice of such Restricted Payment; (g) the ~~last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00~~ Company and ~~(ii) for all~~ its Restricted Subsidiaries may make Restricted Payments ~~made pursuant~~ from and after the Closing Date in an aggregate amount not to exceed the Available Amount at the time of declaration or notice of such Restricted Payment that the Company elects to apply to this Section ~~7.06(c~~8.07(g), such election to be specified in a written notice (which may be the Compliance Certificate) of a Responsible Officer calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no ~~Specified~~ Event of Default shall have occurred and be continuing or would result therefrom; (h) the Company and its Restricted Subsidiaries may make additional Restricted Payments; provided that at the time of declaration or notice of such Restricted Payments, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Rent-Adjusted Total Net Leverage Ratio shall not exceed 5.00 to 1.00 calculated on a Pro Forma Basis as of the end of the most recently ended Test Period; (i) the Borrowers may make Restricted Payments on the Closing Date pursuant to or in ~~each case~~ connection with the ~~Borrower~~ Transactions; (j) the Company and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in connection with the payment of amounts necessary to repurchase Indebtedness or Equity Interests of the Borrowers or any Subsidiary to the extent required by any Gaming Authority having jurisdiction over the Borrowers or any Subsidiary in order to avoid the License Revocation, suspension, or denial of a Gaming License by that Gaming Authority; provided that after giving effect to any such Restricted Payments, at the time of declaration or notice thereof, the Company and its Restricted Subsidiaries are in compliance with Section 8.12 determined on a Pro Forma Basis as of the end of the most recently ended Test Period; provided, further, that, in the case of any such repurchase of Equity Interests of the Borrowers or any Subsidiary, if such efforts do not jeopardize any Gaming License, the Borrowers or any such Subsidiary will have previously attempted to find a suitable purchaser for such Equity Interests and no suitable purchaser acceptable to the applicable Gaming Authority was willing to purchase such Equity Interests on terms acceptable to the holder thereof within a time period acceptable to such Gaming Authority; (k) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (i) the principal amount of such Convertible Debt plus (ii) any payments received by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction; (l) any payments in connection with (i) a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (A) by delivery of shares of Company’s common stock upon settlement thereof or (B) by (1) set-off against the related Permitted Bond Hedge Transaction or (2) payment of an early termination amount thereof in common stock upon any early termination thereof; (m) the Company and its Restricted Subsidiaries may make Restricted Payments in connection with any prepayment, purchase or redemption of minority interests in MGM National Harbor, LLC, MGM Springfield Blue Tarp, Detroit and any other Designated Restricted Entity in an aggregate amount not to exceed ~~the Available Amount immediately prior to~~ $50,000,000 at the time of ~~the making of such Restricted Payment~~declaration or notice thereof; (dn) 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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions non-cash repurchases of Equity Interests ~~in the Borrower or any of the Restricted Subsidiaries~~ deemed to occur upon exercise of stock options or warrants or ~~similar rights~~ the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of such options or ~~warrants or similar rights;~~warrants; and (fo) the ~~Borrower~~ Company and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to in connection with any ~~direct~~ tender offer, redemption or ~~indirect parent~~ other purchase of Equity Interests of the ~~Borrower: (i) the proceeds~~ Company in an aggregate amount not to exceed $1,000,000,000. For purposes of ~~which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons incurred~~ determining compliance with this Section 8.07, in the ~~ordinary course~~ event that the making 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, attributable to the ownership or operations of the Borrower and its~~ declaration thereof) any Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its Payment (or any portion thereof), other than a Restricted Payment made pursuant to Section 8.07(g), meets the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (o) above, the Company may, in its sole discretion, divide, classify or reclassify such ~~direct~~ Restricted Payment (or ~~indirect parent’s~~any portion thereof) ~~corporate~~ at the time such Restricted Payment (or ~~legal existence;~~ any portion thereof) is made (~~iii~~or declared) ~~to finance~~ under any ~~Investment~~ clause under which it would then be permitted to be made ~~pursuant to Section 7.02; provided that~~ (Aor declared) at such time, and at any future time may divide, classify or reclassify such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or ~~make Restricted Payments to allow~~ any ~~direct or indirect parent thereof to pay~~portion thereof) ~~fees and expenses related to~~ under any ~~equity or debt offering~~ clause under which it would be permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made ~~by the Borrower~~ (or ~~a Restricted Subsidiary); (vi~~declared) ~~the proceeds of which~~ at such later time, and in each case will only be ~~used~~ required to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) include the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making type of such Restricted Payment ~~will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r)~~ in one or more of the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)above clauses.

Appears in 1 contract

Sources: Credit Agreement (MGM Resorts International)

Restricted Payments. ~~Declare or make~~Neither the Borrower nor any of the RestrictedSubsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower, and otherRestricted Subsidiaries of the Borrower ~~and to the other Restricted Subsidiaries~~ (and, in the case of a Restricted Payment by a non-~~Wholly Owned Restricted~~ wholly ownedRestricted Subsidiary, to the Borrower and any other Restricted ~~Subsidiaries and~~ Subsidiary, as compared to ~~each other owner~~ the other188 owners of Equity Interests of in such Restricted ~~Subsidiary based~~ Subsidiary, on a pro rata or more than pro rata basis basedon their relative ownership interests of the relevant class of Equity ~~Interests); (b~~Interests);(b) the Borrower and each ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary may declare and make ~~dividend payments or other distributions payable~~ Restricted Paymentspayable solely in the Equity Interests (other than Disqualified Equity ~~Interests~~Interests not otherwise permitted by Section 7.03) of such Person;(c) Restricted Payments made on or after the ~~Borrower; (c~~Closing Date in connection with theTransactions, including the settlement of claims or actions in connection with the Acquisition or to satisfyindemnity or other similar obligations or any other earnouts, purchase price adjustments, working capitaladjustments and any other payments under the Purchase Agreement;(d) so long as ~~immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess~~ no Event of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default ~~shall have~~ has occurred and be is continuing or would result therefrom~~, in each case~~ ,the Borrower and ~~the~~ its Restricted Subsidiaries may make Restricted Payments in an unlimited amount ~~not~~ solong as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equalto 5.00 to ~~exceed the Available Amount immediately prior to the time of the making of such Restricted Payment; (d~~1.00;(e) to the extent constituting Restricted Payments, the Borrower and ~~the Restricted Subsidiaries~~ its RestrictedSubsidiaries may enter into and consummate transactions expressly permitted by any provision ~~of Section~~ ofSections 7.02 (other than ~~Section~~ Sections 7.02(e) and ~~7.02(m~~(m)), ~~Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e))~~ 7.04 or ~~Section~~ 7.08 (other than ~~Section 7.08(i~~Sections 7.08(e) and ~~7.08(m)(ii));~~ (ej));(f) ~~redemptions, repurchases, retirements or other acquisitions~~ repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof)or any Restricted Subsidiary of the ~~Restricted Subsidiaries~~ Borrower deemed to occur upon exercise of stock options or ~~warrants or similar rights if~~ warrantsif such Equity Interests represent a portion of the exercise price of such options or ~~warrants or similar rights; (f~~warrants;(g) the Borrower and ~~the~~ each Restricted ~~Subsidiaries~~ Subsidiary may pay (or make Restricted Payments ~~to allow~~ toallow the Borrower or any other direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement ~~or other~~ orother acquisition or retirement for value of Equity Interests of ~~the Borrower~~ such Restricted Subsidiary (or of theBorrower or any other such direct or indirect parent thereof) ~~held by~~ from any future, present or former ~~officers~~employee,officer, ~~directors~~director, ~~employees, members of management and consultants~~ manager or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners~~Controlled Investment Affiliates or ImmediateFamily Members) of such Restricted Subsidiary (or the Borrower (or any other direct or indirect parent ~~of the Borrower~~ofsuch Restricted Subsidiary) or any of its ~~Restricted~~ Subsidiaries ~~in connection with~~ upon the death, disability, retirement or ~~termination of~~ terminationof employment ~~or service~~ 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 ~~a breach~~ the Borrower or any other direct or indirect parentthereof) or any of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with its Restricted Subsidiaries; provided that the aggregate amount of ~~loans and advances to the Borrower made~~ Restricted Paymentsmade pursuant to ~~Section 7.02(m) in lieu of Restricted Payments permitted by~~ this clause (~~f),~~ g) shall not to exceed ~~the greater of (w) C$~~$35,000,000 ~~and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate~~ in any calendar year (~~it being understood that any~~ which shall increaseto $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in ~~any calendar~~ anycalendar year ~~may be~~ being carried over to succeeding calendar years subject to a maximum of $60,000,000 inany calendar year or $120,000,000 subsequent to the ~~immediately succeeding three calendar years); provided~~ consummation of a Qualified IPO, respectively);provided, further, that such amount in any calendar year may be increased by an amount not to ~~exceed (y~~exceed:(i) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower, the net cash proceeds from the sale ofEquity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) ofany of the Borrower’s direct or indirect parent companies, in each case to any future, present orformer employees, officers, members of management, managers, directors or ~~former employee, officer, director, member of management or consultant~~ consultants (or ~~the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner~~ theirrespective Controlled Investment Affiliates or ~~former domestic partner of any of the foregoing~~Immediate Family Members) of the ~~Borrower~~ Borrower, anyof its Subsidiaries or any of its ~~Subsidiaries or any~~ direct or indirect parent ~~of the Borrower~~ companies that occurs after the ~~Closing~~ Closing189 Date, ~~plus (z~~to the extent net cash proceeds from the sale of such Equity Interests have been NotOtherwise Applied; plus(ii) the net cash proceeds of key man life insurance policies received by theBorrower or its Restricted Subsidiaries; less(iii) the ~~Borrower or~~ amount of any Restricted Payments previously made with the ~~Restricted Subsidiaries after the Closing Date; provided, further, that~~ cash proceedsdescribed in clauses (1i) and (ii) of this Section 7.06(g);(h) the Borrower may ~~elect~~ make Restricted Payments in an aggregate amount not to ~~apply all or any portion~~ exceed, whencombined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the ~~aggregate increase contemplated by clauses~~ greater of (i)$230,000,000 and (ii) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default hasoccurred and ~~(z) above in any calendar year and (2) cancellation~~ is continuing or would result therefrom, the portion, if any, of ~~Indebtedness owing to~~ the Cumulative Credit onsuch date that the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed elects to ~~constitute a Restricted Payment for purposes of~~ apply to this ~~Section 7.06 or any other provision of this Agreement; (g~~paragraph;(i) the Borrower ~~and the Restricted Subsidiaries~~ may make Restricted Payments to any direct or indirect parent of ~~the Borrower:~~ theBorrower: (i) ~~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 ~~of such Persons~~ incurred in the ordinary course ~~of business~~ ofbusiness and other corporate overhead costs and expenses (including administrative, legal, ,accounting and similar expenses provided by third parties), which are reasonable and ~~customary and~~ customaryand incurred in the ordinary course of ~~business~~business and attributable to the ownership or operations ofthe Borrower and its Restricted Subsidiaries, any costs, expenses and liabilities incurred by theCompany in connection with any litigation or arbitration attributable to the ownership oroperations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and anyreasonable and customary indemnification claims made by directors, managers or officers of suchparent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries~~; (ii~~,and following a Qualified IPO, listing fees and other costs and expenses attributable to being apublicly traded company;(ii) the proceeds of which shall be used by such parent to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay)~~ franchise Taxes andother fees, Taxes and ~~similar Taxes, and other fees and expenses,~~ expenses required to maintain its (or any of ~~such~~ its direct or indirect ~~parent’s~~parents’)corporate existence;(iii) ~~corporate~~ for any taxable period in which the Borrower and/or any of its Subsidiaries is amember of a consolidated, combined or ~~legal existence;~~ similar foreign, federal, state or local income or similartax group that includes the Borrower and/or its Subsidiaries (~~iii~~a “Tax Group”) and whosecommon parent is a direct or indirect parent of Borrower, to ~~finance~~ the extent such income or similarTaxes are attributable to the income of the Borrower and/or its Restricted Subsidiaries and, to theextent of any ~~Investment permitted~~ cash amounts actually received from its Unrestricted Subsidiaries for such purpose,to ~~be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with~~ the ~~closing~~ income of such ~~Investment~~ Unrestricted Subsidiaries, to pay U.S. federal, state and local and foreignTaxes 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 casethe amount of such payments in respect of any fiscal year does not exceed the amount that theBorrower and/or its Restricted Subsidiaries (and, to the extent permitted above, its UnrestrictedSubsidiaries), 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 itsSubsidiaries (including its Unrestricted Subsidiaries to the extent described above), as applicable,(A) paid such Taxes separately from any such parent company or (B) ~~such Persons shall~~if the Borrower is treated asa disregarded entity or partnership for U.S. federal, ~~promptly following~~ state and/or local income tax purposes forsuch period, were the ~~closing thereof, cause~~ Borrower a taxpayer and parent of a consolidated group and had paid such190 (12) all property ~~acquired (whether~~ acquired(whether assets or Equity Interests) to be contributed to the Borrower or ~~a Restricted Subsidiary~~ the RestrictedSubsidiaries or (23) the ~~merger, amalgamation, consolidation or sale of all or substantially all assets~~ merger (to the extent permitted in Section 7.04) of the Person formed oracquired into the Borrower or its Restricted Subsidiaries in order to consummate such ~~Investment~~ PermittedAcquisition or ~~acquired pursuant to such~~ Investment~~, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary~~, in each case, in accordance with the requirements of Section ~~6.12 and Section 7.02; (iv~~6.11;(vii) the proceeds of which shall be used to pay customary salary, bonus and otherbenefits payable to officers and employees of Holdings, the Borrower or any direct or indirectparent company of the Borrower to the extent such salaries, bonuses and other benefits areattributable to the ownership or operation of the Borrower and the Restricted Subsidiaries; and(viii) the proceeds of which shall be used by Holdings or the Borrower to pay (or ~~make~~ tomake Restricted Payments to allow any direct or indirect parent thereof to pay) fees and ~~expenses~~ expenses(other than to Affiliates) related to any unsuccessful equity or debt offering ~~permitted~~ by ~~this Agreement~~ the Borrower (~~whether~~ orany direct or ~~not successful); (v~~indirect parent thereof) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are that is directly attributable to the ~~ownership or operation~~ operations of the ~~Borrower and~~ Borrowerand its Restricted ~~Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h),~~ Subsidiaries; 191 (j~~), (k), (l), (m), (n), (o), (p), (r), (t), (w~~) ~~and (y) (but only to the extent such~~ payments ~~have not been and are not~~ made or expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of ~~its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is~~ the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments RestrictedSubsidiaries in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of required withholding or similar ~~taxes payable by~~ non-U.S. Taxes with respect to any future, ,present or former ~~officer,~~ employee, director, ~~member of management~~ manager or consultant (or their respective ~~estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners~~ Controlled InvestmentAffiliates and ~~former domestic partners),~~ Immediate Family Members) and any repurchases of Equity Interests in consideration ofsuch payments including deemed repurchases in connection with the exercise of stock options or theissuance of restricted stock units or similar stock based awards;(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional EquityInterests 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 lieuof fractional shares in connection with any ~~cash payment~~ such conversion and may make payments on convertibleIndebtedness in ~~respect of amounts described in the foregoing clause (ii); (j~~accordance with its terms;(l) ~~in addition to the foregoing Restricted Payments~~ after a Qualified IPO and so long as no Event of Default ~~shall have~~ has occurred and ~~be continuing or~~ is continuingor would result therefrom, (i) any Restricted Payment by the Borrower or any other direct or indirectparent of the Borrower to pay listing fees and other costs and expenses attributable to being a publiclytraded company which are reasonable and customary and (ii) Restricted Payments not to exceed up to thesum of (A) up to 6.00% per annum of the net proceeds received by (or contributed to) the Borrower andits Restricted Subsidiaries ~~may make additional~~ from such Qualified IPO and (B) Restricted Payments in an aggregate ~~amount since the First Amendment Effective Date~~ amountper annum not to exceed ~~the greater of (i) C$50,000,000 and (ii) 1.5~~5.00% of ~~Consolidated Total Assets determined at~~ Market Capitalization;(m) distributions or payments of Securitization Fees;(n) payments or distributions to dissenting stockholders pursuant to applicable law (includingin connection with, or as a result of, exercise of appraisal rights and the ~~time~~ settlement of ~~incurrence~~ any claims or action(whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger ortransfer of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as all or substantially all of the ~~last day~~ assets of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its ~~restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends)~~Restricted Subsidiaries, ~~in the aggregate in any calendar year of up to the sum of~~ taken as awhole; (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (mo) the distribution, by dividend or otherwise, of ~~shares~~ Equity Interests of ~~capital stock of,~~ an UnrestrictedSubsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no othermaterial assets) or Indebtedness owed to the Borrower or a Restricted Subsidiary ~~by,~~ by an UnrestrictedSubsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries (and no othermaterial assets), in each case, other than Unrestricted ~~Subsidiaries,~~ Subsidiaries the primary assets of which are ~~cash and~~ cashand/or Cash ~~Equivalents); (n~~Equivalents;(p) Restricted Payments ~~to satisfy appraisal or other dissenters’ rights, pursuant to or~~ that are made in ~~connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04;~~ (oi) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous an amount equal to the ~~Lenders in all respects material~~ amount of ExcludedContributions previously received and the Borrower elects to ~~their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions.~~ apply under this clause (p) or (ii) withoutduplication with clause (i), in an amount equal to the ~~Original Transaction and Restricted Payments made~~ Net Proceeds from a Disposition in respect ofproperty or assets acquired after the Closing Date, if the acquisition of such property or assets wasfinanced with Excluded Contributions, in each case, to ~~effect~~ the ~~Original Transaction; (q~~extent Not Otherwise Applied; and(q) the ~~making~~ payment of any ~~Restricted Payment~~ dividend or other distribution or the consummation of any irrevocableredemption within ~~sixty (60)~~ 60 days after the date of declaration ~~thereof~~of the dividend or other distribution or the givingof the redemption notice, as the case may be, if at the date of ~~such~~ declaration ~~such Restricted Payment~~ or notice, the dividend or otherdistribution or redemption payment would have complied with ~~another provision~~ the provisions of this Agreement.Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)7.07. [Reserved].

Appears in 1 contract

Sources: Credit Agreement (Alight, Inc. / Delaware)

Restricted Payments. Declare or ~~make~~pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted ~~Payment~~Payments”), ~~except~~except that: (a) ~~each Restricted Subsidiary~~ the Borrower may make Restricted Payments ~~to the Borrower and to the~~ solely in additional units of its Capital Stock (other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted 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 Intereststhan Disqualified Capital Stock); (b) the Borrower and each of the Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower; (c) so long as immediately after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments ~~in an amount not~~ ratably with respect to ~~exceed the Available Amount immediately prior to the time of the making of such Restricted Payment~~their Capital Stock; (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 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable to the Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire Capital Stock issued by it with the proceeds received from the substantially concurrent issue of new Capital Stock (provided that if such new Capital Stock being issued is preferred Capital Stock, then proceeds of ~~which shall~~ such new Capital Stock may only be used to ~~pay (~~purchase, redeem or ~~make Restricted Payments to allow any direct~~ otherwise acquire Capital Stock that is preferred Capital Stock of the same series or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable Capital Stock having terms less favorable to the ~~ownership or operations of the Borrower~~ Lenders) and ~~its Restricted Subsidiaries;~~ (ii) the ~~proceeds of which shall be used to pay (or~~ Borrower may make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with ~~the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (~~stock option plans or ~~make Restricted Payments to allow any direct~~ other benefit plans for management or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation employees of the Borrower and its Restricted Subsidiaries or in an amount not to exceed $1,000,000 for any period of four (B4) ~~shall be used to make payments permitted under Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to~~ consecutive fiscal quarters of the ~~extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary)~~Borrower; (vid) ~~the proceeds of which will be used to make payments due or expected to be due to cover social security~~so long as both before and immediately after giving effect thereto, ~~Medicare~~on a Pro Forma Basis, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) ~~redemptions, repurchases, retirements~~ no Default or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, ~~the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and~~ (ii) ~~1.5%~~ the amount of the Total Available Revolving Commitments is greater than $10,000,000 and (iii) the Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio is not and would not be greater than (~~calculated on a Pro Forma Basis~~A) as 4.5 to 1.00 for any fiscal quarter of the ~~last day of the most recently ended Test Period~~ Borrower on or prior to the ~~date of determination is less than or equal~~ fiscal quarter ending June 30, 2011, (B) 4.25 to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% 1.00 for each of the ~~Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization~~ fiscal quarters of the Borrower at ending September 30, 2011 and December 31, 2011, or (C) 4.00 to 1.00 for any fiscal quarter of the ~~time~~ Borrower ending on or after March 31, 2012, the Borrower may declare cash distributions to the holders of its Capital Stock in an amount not to exceed “Available Cash” (as such ~~Qualifying IPO;~~term is defined in the Borrower Partnership Agreement) pursuant to and in accordance with the terms of the Borrower Partnership Agreement (“Quarterly Distributions”); and (~~l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m~~e) the ~~distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the~~ Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment may pay Quarterly Distributions within ~~sixty (60)~~ 45 days after the date of declaration ~~thereof~~thereof if, if at the date of declaration, such ~~declaration such Restricted Payment~~ payment would ~~have complied~~ comply with ~~another provision~~ clause (d) of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement)7.6.

Appears in 1 contract

Sources: Credit Agreement (Blueknight Energy Partners, L.P.)

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, ~~except~~or incur any obligation (contingent or otherwise) to do so, except that each of the following shall be permitted so long as no Default or Event of Default shall have occurred and be continuing prior, or immediately after giving effect, to the following, or would result therefrom: (a) each ~~Restricted~~ Subsidiary of a Loan Party may make Restricted Payments to ~~the Borrower and to the other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Borrower and~~ any ~~other Restricted 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)~~Loan Party; (b) the ~~Borrower~~ Loan Parties and each ~~of the Restricted Subsidiaries~~ 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)~~ of ~~the Borrower~~such Person; (c) ~~so long as immediately after giving effect to such Restricted Payment,~~ if (i) (x) no Loans have been outstanding for ~~all Restricted Payments made~~ the six (6) month period immediately preceding such payment, (y) no Loans are projected to be borrowed by the Borrowers pursuant to ~~this Section 7.06(c~~the projections delivered by the Loan Parties pursuant to 6.01(c) ~~in excess of C$55,000,000 which are attributable~~ hereof for the six (6) month period immediately following such payment, and (z) the Parent uses cash on hand to ~~clause (b) of the Available Amount~~make such payment, ~~the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on~~ or ~~prior to the date of determination is greater than or equal to 2.00:1.00 and~~ (ii) ~~for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred~~ the RP Conditions are satisfied, the Loan Parties and ~~be continuing~~ each Subsidiary may purchase, redeem or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Amount immediately prior to the time of the making of such Restricted Payment;otherwise acquire Equity Interests issued by it; and (d) if (i) (x) no Loans have been outstanding for the six (6) month period immediately preceding such payment, (y) no Loans are projected to be borrowed by the Borrowers pursuant to the ~~extent constituting Restricted Payments~~projections delivered by the Loan Parties pursuant to 6.01(c) hereof for the six (6) month period immediately following such payment, and (z) the Parent uses cash on hand to make such payment, or (ii) the RP Conditions are satisfied, the ~~Borrower and the Restricted Subsidiaries~~ Parent may ~~enter into and consummate transactions expressly permitted by~~ declare or pay cash dividends to its stockholders; provided, that if any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any of the Restricted 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 warrants or similar rights; (f) the Borrower and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is ~~directly attributable~~ made to ~~the Equity Interests of the Borrower owned directly~~ a Person who is not a Loan Party and includes Intellectual Property used or indirectly by such parent) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries useful in connection with the ~~death~~conduct of the Loan Parties’ business or use of the Collateral, ~~disability, retirement or termination of employment or service of any~~ such ~~Person (or~~ Intellectual Property shall be subject to a ~~breach of any~~ non-~~compete or other restrictive covenant or confidentiality obligations~~ exclusive royalty-free worldwide license of ~~any~~ such ~~Person at any time after such Person’s disability, retirement or termination of employment or service)~~ Intellectual Property in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any favor of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent contributed to the Borrower) to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment Agent for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating costs and expenses of such Persons 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, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, in lieu of issuing fractional shares, use in connection with the exercise of ~~warrants~~the rights and remedies of the Credit Parties, ~~options or other securities convertible into or exchangeable for Equity Interests of such Persons; and (viii) for any taxable period for~~ which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable license shall be in form and substance reasonably satisfactory to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purpose; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since the First Amendment Effective Date not to exceed the greater of (i) C$50,000,000 and (ii) 1.5% of Consolidated Total Assets determined at the time of incurrence of such Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment, the Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period on or prior to the date of determination is less than or equal to 5.00:1.00; (k) after a Qualifying IPO, the declaration and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent Not Otherwise Applied; (m) the distribution, by dividend or otherwise, of shares of capital stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded ContributionsAgent. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Kirkland's, Inc)

Restricted Payments. ~~Declare or make~~The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except: (a) ~~each Restricted Subsidiary may~~ to make ~~Restricted Payments~~ dividends payable solely in the same class of Equity Interests (or if different, common Equity Interests) of such Person; (b) to make dividends or other distributions payable to the ~~Borrower and to the other Restricted Subsidiaries~~ Credit Parties (~~and~~directly or indirectly through its Subsidiaries), or, in the case of any Subsidiary that is not a ~~Restricted Payment by a non~~wholly-~~Wholly Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted~~ owned Subsidiary based on their relative ownership interests of the relevant class of Equity Interests); (b) the Borrower and each of the Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of the Borrower, such Subsidiary may make dividends and distributions ratably to any other holders of such Subsidiary’s Equity Interests with respect to their Equity Interests; (c) to make Permitted Tax Distributions; (d) for the payment of any earn-out payments in connection with a Permitted Acquisition or Investment permitted pursuant to Section 6.5; provided that no Event of Default is then continuing or would result therefrom; (e) so long as ~~immediately~~ (i) no Event of Default exists or would result therefrom, (ii) after giving effect to such Restricted Payment, (i) for all Restricted Payments made pursuant to this Section 7.06(c) in excess of C$55,000,000 which are attributable to clause (b) of the Available Amount, the Fixed Charge Coverage Ratio (calculated Payment on a Pro Forma Basis~~) as~~ , the Credit Parties are in compliance with each of the ~~last day~~ financial covenants set forth in Section 5.9 and (iii) after giving effect to such Restricted Payment on a Pro Forma Basis, the Credit Parties shall have at least $10,000,000 of Liquidity, the Borrower may pay dividends or make distributions to permit the Parent to redeem or repurchase equity interests of the most recently ended Test Period on or prior to the date of determination is greater than or equal to 2.00:1.00 and (ii) for all Restricted Payments made pursuant to this Section 7.06(c) no Specified Default shall have occurred and be continuing or would result therefrom, in each case the Borrower and the Restricted Subsidiaries may make Restricted Payments Parent in an aggregate amount not to exceed (x) beginning on the ~~Available Amount immediately prior~~ Third Amendment Effective Date through and including the fiscal quarter ending December 31, 2023, $0 (provided, however, in addition to the ~~time~~ conditions set forth in clauses (e)(i) and (e)(ii) above, if after giving effect to such Restricted Payment on a Pro Forma Basis, the Credit Parties have at least $20,000,000 of Domestic Unrestricted Cash on the balance sheet of the ~~making~~ Credit Parties and their Subsidiaries (but excluding any cash received during such period in connection with any Loan or other incurrence of Indebtedness), such ~~Restricted Payment;~~ aggregate amount shall be increased to $1,500,000), and (dy) thereafter, $25,000,000 in any fiscal year, provided, that the foregoing limitation shall (xA) not apply to any redemption, repurchase or repayment to the extent ~~constituting Restricted Payments~~funded by proceeds of the issuance of equity by the Parent so long as such proceeds are contemporaneously used by the Parent to redeem, repurchase or repay any equity or debt of the ~~Borrower~~ Parent held by officers, directors or employees of the Credit Parties and (yB) exclude the ~~Restricted Subsidiaries may enter into and consummate transactions expressly permitted~~ repayment or prepayment of loans made by any provision of Section 7.02 (other than Section 7.02(e) and 7.02(m)), Section 7.03, Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(i) and 7.08(m)(ii)); (e) redemptions, repurchases, retirements or other acquisitions of Equity Interests in the ~~Borrower~~ Parent or any of ~~the Restricted~~ its Subsidiaries ~~deemed to occur upon exercise of stock options~~ in connection with such redemption or ~~warrants~~ repurchase or ~~similar rights if such Equity Interests represent a portion of the exercise price~~ other acquisition of such ~~options~~ equity interests, provided that such prepayment or ~~warrants or similar rights~~repayment of loans constitutes a cashless transaction; (f) the Borrower may make dividends and the Restricted Subsidiaries may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay, so long as in the case of any payment in respect of Equity Interests of any direct or indirect parent of the Borrower, the amount of such Restricted Payment is directly attributable distributions to the ~~Equity Interests of the Borrower owned directly or indirectly by such parent) for the repurchase~~Parent, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or such direct or indirect parent thereof) held by any future, present or former officers, directors, employees, members of management and consultants (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries in connection with the death, disability, retirement or termination of employment or service of any such Person (or a breach of any non-compete or other restrictive covenant or confidentiality obligations of any such Person at any time after such Person’s disability, retirement or termination of employment or service) in an aggregate amount after the First Amendment Effective Date, together with the aggregate amount of loans and advances to the Borrower made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f), not to exceed the greater of (w) C$35,000,000 and (x) 1.1% of Consolidated Total Assets (calculated on a Pro Forma Basis) in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year may be carried over to the immediately succeeding three calendar years); provided that such amount in any calendar year may be increased by an amount not to exceed (y) the cash proceeds received by the Borrower or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests, Excluded Contributions or amounts that increased the Available Amount) of the Borrower or any direct or indirect parent of the Borrower (to the extent ~~contributed~~ necessary to permit the ~~Borrower)~~ Parent to any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any of maintain its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, plus (z) the cash proceeds of key man life insurance policies received by the Borrower or the Restricted Subsidiaries after the Closing Date; provided, further, that (1) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (y) legal existence and (z) above in any calendar year and (2) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, officer, director, member of management or consultant (or the estates, executors, administrators, heirs, family members, legatees, distributees, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) of the Borrower or any direct or indirect parent thereof or any Subsidiary thereof in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (g) the Borrower and the Restricted Subsidiaries may make Restricted Payments to any direct or indirect parent of the Borrower: (i) the proceeds of which shall be used to pay ~~(or make Restricted Payments to allow any direct or indirect parent thereof to pay) operating~~ reasonable out-of-pocket general administrative costs and expenses ~~of such Persons~~ (which may include out-of-pocket legal, accounting and filing costs, other reasonable and customary corporate overhead expenses incurred in the ordinary course of business and ~~other corporate overhead costs~~ customary transaction-based fees and expenses ~~(including administrative, legal, accounting~~ of third-party investment bankers and ~~similar expenses provided by third parties~~advisers for services rendered to the Parent relating to the Parent and its Subsidiaries not prohibited hereunder), so long as the Parent, as applicable, applies the amount of any such Restricted Payment for any such purpose within 60 days of receipt; (g) the Borrower may make distributions to the Parent which are ~~reasonable~~ concurrently used by the Parent to pay operating expenses, professional fees, expenses and ~~customary~~ indemnifications and director’s or manager’s fees, expenses and indemnifications, solely to the extent (x) attributable to the Parent’s ownership relating to the Credit Parties or any Subsidiary thereof, (y) incurred in the ordinary course of business, attributable to the ownership or operations of the Borrower and its Restricted 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) franchise and similar Taxes, and other fees and expenses, required to maintain its (or any of such direct or indirect parent’s) corporate or legal existence; (iii) 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 business and (Bz) such Persons shall, promptly 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 (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent otherwise permitted in Section 7.04) of the Person formed in order to consummate such Investment or acquired pursuant to such Investment, as applicable, into or to, as applicable, the Borrower or a Restricted Subsidiary, in each case, in accordance with the requirements of Section 6.12 and Section 7.02; (iv) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (v) the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, directors, officers, employees, members of management and consultants of such Persons and any payroll, social security or similar taxes in connection therewith 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 Section 7.08(c)(i), (e), (g), (h), (j), (k), (l), (m), (n), (o), (p), (r), (t), (w) and (y) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary); (vi) the proceeds of which will be used to make payments due or expected to be due to cover social security, Medicare, employment insurance, statutory pension plan, withholding and other taxes payable and other remittances to Governmental Authorities in connection with any management equity plan or stock option plan or any other management or employee benefit plan or agreement of such Persons or to make any other payment that would, if made by the Borrower or any Restricted Subsidiary, be permitted under this Agreement; (vii) the proceeds of which shall be used to pay cash, 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 such Persons; and (viii) for any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income Tax group for Tax purposes of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), the proceeds of which are necessary to permit the common parent of such Tax Group to pay the portion of any income Tax of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its Subsidiaries; provided that (A) the amount of such Restricted Payments for any taxable period shall not exceed that amount of such Taxes that Borrower and/or its Subsidiaries, as applicable, would have paid had Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) for all applicable tax years and (B) the amount of such Restricted Payments in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower or any of its Restricted Subsidiaries for such purposehereunder; (h) the Borrower or any of the Restricted Subsidiaries may pay cash (or make Restricted Payments to any direct or indirect parent the proceeds of which shall be used to enable it to pay cash) in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests; (i) redemptions, repurchases, retirements or other acquisitions 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 or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options and any cash payment in respect of amounts described in the foregoing clause (ii); (j) in addition to the foregoing Restricted Payments and so long as no Event of Default ~~shall have occurred and be continuing~~ exists or would result therefrom, the Borrower or any Subsidiary thereof may pay, as and when due and payable, amounts owing with respect to Subordinated Debt, solely to the ~~Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount since~~ extent permitted under the ~~First Amendment Effective Date not to exceed the greater of~~ subordination terms applicable thereto; and (i) ~~C$50,000,000~~ the Borrower or any Subsidiary may, or the Borrower or any Subsidiary may make distributions to the Parent which are concurrently used by the Parent to, in each case, pay amounts due and owing under Seller Notes and Earn-Out Obligations so long as (i) such Seller Notes and Earn-Out Obligations are otherwise permitted under Section 6.1 and (ii) ~~1.5%~~ with respect to the Target being acquired from the issuance of ~~Consolidated Total Assets determined at~~ such Seller Notes or the ~~time of~~ incurrence of such ~~Indebtedness (calculated on a Pro Forma Basis) plus additional unlimited amounts so long as immediately after giving effect to any such additional unlimited amounts of Restricted Payment~~Earn-Out Obligations, the ~~Total Net Leverage Ratio (calculated~~ Administrative Agent, on ~~a Pro Forma Basis) as~~ behalf of the ~~last day of the most recently ended Test Period on or prior~~ Secured Parties, shall have received a first priority perfected security interest (subject to ~~the date of determination is less than or equal~~ Permitted Liens) in all property (including, without limitation, Equity Interests) acquired with respect to ~~5.00:1.00; (k) after a Qualifying IPO~~such Target in accordance with, ~~the declaration~~ and payment of dividends on the Borrower’s common stock (and the Borrower and its restricted Subsidiaries may pay dividends to any of its parents to permit such parent to pay such dividends), in the aggregate in any calendar year of up to the sum of (i) 6.00% of the Net Cash Proceeds received by or contributed to the Borrower or a Restricted Subsidiary in or from any such Qualifying IPO and (ii) 6.00% of the market capitalization of the Borrower at the time of such Qualifying IPO; (l) Restricted Payments that are made with Excluded Contributions to the extent ~~Not Otherwise Applied; (m)~~ required by, the ~~distribution~~terms of Section 5.12 and the Target, ~~by dividend or otherwise~~if a Person, ~~of shares of capital stock of~~shall have executed a Joinder Agreement in accordance with, ~~or Indebtedness owed~~ and to the ~~Borrower or a Restricted Subsidiary~~ extent required by, ~~Unrestricted Subsidiaries (other than Unrestricted Subsidiaries,~~ the ~~primary assets~~ terms of which are cash and Cash Equivalents); (n) Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 7.02 or Section 7.04; (o) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby; provided, further, that such amounts are not included in Excluded Contributions5.10. (p) the Original Transaction and Restricted Payments made to effect the Original Transaction; (q) the making of any Restricted Payment within sixty (60) days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 7.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; and (r) the First Amendment Transactions and Restricted Payments made to effect the First Amendment Transactions and pay fees and expenses related thereto (including Restricted Payments made (A) to holders of restricted stock or performance stock units as provided by the First Amendment Transaction Agreement and (B) in order to satisfy indemnity and other similar obligations under the First Amendment Transaction Agreement).

Appears in 1 contract

Sources: Credit Agreement (Fluent, Inc.)

Common use of Restricted Payments Clause in Contracts