Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; (c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto; (d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f); (e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof: (i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately; (ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries; (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; (iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and (v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; (g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO); (h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount; (i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions; (j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower; (k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and (l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 8 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Corp), Credit Agreement (West Corp)
Restricted Payments. Declare None of the Covenant Parties shall, nor shall any Covenant Party permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower any Covenant Party, and to other Restricted Subsidiaries and of any Covenant Parties (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower any Covenant Party and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower any Covenant Party and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments as part of or in connection with the Transaction (including or the unwinding of any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately intercompany transaction put in place prior to giving effect to the Transactions) Closing Date or as part of or in connection with, or as a result of, their exercise of appraisal rights and with the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction);
(d) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date ▇▇▇▇▇▇▇ delivers an irrevocable written notice to the Administrative Agent stating that Restricted Payments will be made to fund cash interest payments required to be made by the Company (the “Company Restricted Payments Election”), such Restricted Payments may be made;
(e) to the extent constituting Restricted Payments, the Borrower any Covenant Party and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f) or 7.08(l);
(ef) repurchases of Equity Interests in the Borrower any Covenant Party or any Restricted Subsidiary of a Covenant Party deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to Covenant Parties may pay (or to make Restricted Payments to allow the Company or any other direct or indirect parent thereof of the Covenant Parties to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Covenant Party (or of the Borrower Company or any other such parent of such Covenant Party) by any future, present or former employee or director of such Covenant Party (or the Borrower Company or any other direct or indirect parent of such Covenant Party) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of such Covenant Party (or the Borrower Company or any other direct or indirect parent of such Covenant Party) or any of its Restricted Subsidiaries;
(h) the Covenant Parties may make Restricted Payments in an aggregate amount equal to (x) $250,000,000, plus, if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 7.00 to 1.00, (y) the portion, if any, of the Cumulative Credit on such date that ▇▇▇▇▇▇▇ elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of ▇▇▇▇▇▇▇ calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, howeverthat with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom;
(i) the Covenant Parties and the Restricted Subsidiaries may make Restricted Payments to the Company or any other direct or indirect parent of the Covenant Parties:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries;
(ii) the proceeds of which shall be used by such parent to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) to pay federal, foreign, state and local income taxes; provided that, for each fiscal year, the amount of such payments made in respect of such fiscal year shall not exceed the amount that the Company and the Restricted Subsidiaries would be required to pay in respect of federal, foreign, state and local income taxes if such entities were corporations paying taxes separately from any parent entity at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if any Covenant Party or Restricted Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that the aggregate a Restricted Payment in duplication of such amount of payments shall not be permitted to be made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOiii));
(hiv) so long as no Default shall have occurred and to finance any Investment that would be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings permitted to be made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant 7.02 if such parent were subject to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of such section; provided that (A) $75,000,000 (such amount to Restricted Payment shall be increased to $100,000,000 upon made substantially concurrently with the Total Leverage Ratio as closing of the last day of any Test Period being less than 5.0 to 1.0) such Investment and (B) such parent shall, immediately following the Cumulative Growth Amountclosing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Covenant Parties or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with the requirements of Section 6.11;
(iv) so long as the proceeds of which shall be used by such parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or to any merger or acquisition transaction permitted by this Agreement;
(vi) the proceeds of which shall be used to repurchase, redeem, retire or otherwise acquire the 7% preference shares of the Company in existence on the Closing Date (at a per share price of no Default shall have occurred and be continuing or would result therefrom, more than the Borrower may make additional Restricted Payments in an amount (together with the aggregate face amount of Investments made pursuant to Section 7.02(vsuch shares)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make any Restricted Payments with Payment of the proceeds of the issuance of Qualified Equity Interests of the BorrowerIndebtedness incurred to refinance Indebtedness outstanding pursuant to Section 7.03(b)(i) and to pay accrued and unpaid interest, premium, fee and expenses related thereto;
(k) if the Borrower shall become the Subsidiary of Holdingsafter a Qualified IPO, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice (i) any Restricted Payment to the Administrative Agent stating that Company or any other direct or indirect parent of the Borrower will make such dividends Covenant Parties to pay listing fees and distributions other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (the “ii) Restricted Payments Interest Expense Election”) in respect of up to 6% per annum of the Indebtedness specified in net proceeds received by (or contributed to) the Covenant Parties and their Restricted Subsidiaries from such notice only so long as no Default shall have occurred and be continuing or would result therefrom; andQualified IPO;
(l) the declaration and payment non-cash forgiveness, cancellation, termination or disposition of dividends and distributions on the Equity Interests Transactions Intercompany Obligations; and
(m) any Restricted Payment caused by granting the Ratable Security of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)EMTNs.
Appears in 6 contracts
Sources: Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, Holdco and any other Restricted Subsidiary and Person that owns an Equity Interest in such Subsidiary, ratably according to each other owner their respective holdings of the type of Equity Interests Interest in respect of which such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsPayment is being made;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the Transaction (including any amounts to be paid under, proceeds received from the substantially concurrent issue of new shares of its common stock or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of other common Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;Interests; and
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used declare or pay cash dividends to pay the Holdco in amounts sufficient to allow Holdco (x) to discharge any Federal, state and local income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for arising from the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
, and (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereofy) to pay franchise taxes corporate overhead and other fees, taxes and administrative expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed reasonably allocable to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of and its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause and (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(hii) so long as no Event of Default shall have occurred and be continuing exists under Section 7.10(a) or would result therefromclause (a), the Borrower may make additional Restricted Payments in an aggregate amount(f) or (g) of Section 8.01, together with the aggregate amount of before or after giving effect thereto, (ix) prepaymentsdeclare or pay cash dividends to Holdco, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (iiy) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h)purchase, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing redeem or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified otherwise acquire Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted issued by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)it.
Appears in 6 contracts
Sources: Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group), Credit Agreement (California Water Service Group)
Restricted Payments. Declare or makeNeither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, contingent or potential) with respect theretopurchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $35,000,000 in any calendar year (which shall increase to $70,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $60,000,000 in any calendar year or $120,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, officers, members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the greater of (i) $230,000,000 and Holdings (ii) 37.5% of LTM Consolidated EBITDA, plus (y) so long as no Event of Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, any costs, expenses and liabilities incurred by the Company in connection with any litigation or arbitration attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iviii) if for any taxable period in which the Borrower and/or any of its Subsidiaries is a Holdings Election Event shall occurmember of a consolidated, combined or similar foreign, federal, state or local income or similar tax group that includes the Borrower and/or its Subsidiaries (a “Tax Group”) and whose common parent is a direct or indirect parent of Borrower, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) the extent such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets income or Equity Interests) to be contributed similar Taxes are attributable to the income of the Borrower or and/or its Restricted Subsidiaries and, to the extent of any cash amounts actually received from its Unrestricted Subsidiaries for such purpose, to the income of such Unrestricted Subsidiaries, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its applicable Subsidiaries; provided, that in each case the amount of such payments in respect of any fiscal year does not exceed the amount that the Borrower and/or its Restricted Subsidiaries (2) the merger (and, to the extent permitted above, its Unrestricted Subsidiaries), as applicable, would have been required to pay in Section 7.04) respect of the Person formed relevant foreign, federal, state or acquired into local income or similar Taxes for such fiscal year) had the Borrower or and its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (including its Unrestricted Subsidiaries to the extent required by the Collateral and Guarantee Requirementdescribed above); and
, as applicable, (vA) paid such Taxes separately from any such parent company or (B) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period, were the Borrower a taxpayer and parent of a consolidated group and had paid such taxes for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent Unrestricted Subsidiaries to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOextent described above);
(hiv) so long as no Default shall have occurred and be continuing for any taxable period (or would result therefrom, portion thereof) in which the Borrower may make additional Restricted Payments is a partnership or disregarded entity for U.S. federal income tax purposes, payments to the owner or owners of equity of the Borrower in an aggregate amountamount equal to each of the owner’s proportionate share of the Tax Amount. The “Tax Amount” is the Highest Owner Tax Amount divided by such owner’s proportionate economic ownership interest the Borrower. The “Highest Owner Tax Amount” is, together with respect to the aggregate amount applicable owner receiving the greatest proportionate allocation of estimated net taxable income attributable to the Borrower in the applicable tax period (ior portion thereof) prepayments, redemptions, purchases, defeasances and other payments in respect to which such payment relates (as a result of Junior Financings made pursuant to the application of Section 7.13(a)(iv704(c) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hthe Code or otherwise), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as aggregate taxable income of the last day of Borrower allocated to such owner (calculated by excluding the tax consequences resulting from any Test Period being less than 5.0 to 1.0Code Section 743(b) and adjustment) in such applicable taxable period (or portion thereof), multiplied by (B) the Cumulative Growth Amounthighest combined marginal federal, state and/or local income tax rate applicable to an individual residing in California or New York, New York (whichever is higher for the relevant period);
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 5 contracts
Sources: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Restricted Payments. Declare The Loan Parties shall not, and shall not permit any Unregulated Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, except:
except that (a) the Borrower may (i) each Restricted Subsidiary may declare and make Restricted Payments to the Borrower and to any dividend payment or other Restricted Subsidiaries and distribution payable in its common stock, (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) effectuate cashless repurchases of Equity Interests in the Borrower or any Restricted Subsidiary its capital stock deemed to occur upon the exercise of options, warrants or similar rights in such capital stock options or warrants if such Equity Interests represent a portion the payment by the Borrower of employee tax liabilities arising from the exercise price issuance of such options capital stock pursuant to stock option or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct other equity-based incentive or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred benefit plans in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
; (iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of cash payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum issuance of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized fractional shares in connection with the Transactions;
exercise of warrants, options or other securities convertible into or exchangeable for equity interests of the Borrower; (jiv) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds received from the substantially concurrent issue of the issuance of Qualified Equity Interests of the Borrower;
new common stock; and (kv) if the Borrower shall become the Subsidiary of Holdings, make any other Restricted Payment so long as no Event of Default or Potential Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be is continuing or would result therefrom; and
and (lb) any Subsidiary of the declaration Borrower may declare and payment make any Restricted Payment (1) to the holders of dividends and distributions the equity interests of such Subsidiary, ratably according to such equity holder’s percentage ownership of the class of equity interest in respect of which such Restricted Payment is being made or (2) to any Loan Party, whether or not on a ratable basis. In addition, each Loan Party shall not permit any of its Regulated Subsidiaries to be subject to contractual limitations on the Equity Interests ability of any Receivables Management such Regulated Subsidiary to holders of minority interests substantially consistent with past practice make Restricted Payments to the extent such holder (or its affiliates) participates Loan Party, other than restrictions contained in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management senior Indebtedness incurred by such Regulated Subsidiary).
Appears in 5 contracts
Sources: Credit Agreement (New Jersey Resources Corp), Term Loan Credit Agreement (New Jersey Resources Corp), Credit Agreement (New Jersey Resources Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(f)) or Section 7.04;
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it held by any future, present or former employee employee, director, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management or director equity plan, employee employee, management or director stock option plan or any other employee employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, officer or director consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any fiscal year; provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrower or any of its Subsidiaries from members of management of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount Borrower’s Restricted Subsidiaries in connection with a repurchase of payments made pursuant to this clause (f) does not exceed in Equity Interests of any fiscal year of the Borrower $15,000,000 will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(which shall increase g) netting of shares under stock option plans to $20,000,000 subsequent settle option price payments owed to employees and officers of the consummation Borrower with respect thereto, and netting of a Qualifying IPOshares to settle such employees’ and officers’ federal, with unused amounts in any calendar year being carried over state and income tax liabilities (if any) related to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)restricted stock units and similar stock based awards thereunder;
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) the Borrower and each Restricted Subsidiary may declare and make dividend payments to or other distributions payable in Qualified Equity Interests of such Person;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that (x) at the time of any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefromtherefrom and (y) in the case of any such Restricted Payment in an amount in excess of $15,000,000, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(l) the declaration and payment by the Borrower of dividends and distributions on the Equity Interests common stock or common equity interests of the Borrower in an amount not to exceed in any fiscal year the greater of (x) the aggregate amount of dividends on the common stock or common equity interests of the Borrower paid by the Borrower in the prior fiscal year and (y) at the time of any Receivables Management Subsidiary such declaration by the Borrower, an amount equal to holders 40% of minority interests substantially consistent with past practice to the extent Consolidated Net Income of the Borrower for the Test Period most recently ended; provided that no Default or Event of Default shall have occurred and be continuing at the time of the declaration of any such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payment.
Appears in 4 contracts
Sources: Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Company may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Company (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Company or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Company (or any direct or indirect parent of the Company) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Lead Borrower or any Subsidiary; provided that such payments do not to exceed $25,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $50,000,000; provided further that cancellation of Indebtedness owing to the Company (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Company, any of the Company’s direct or indirect parent companies or any of the Company’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Company’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Company:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Company or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Company and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Company or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Company attributable to the direct or indirect ownership or operations of the Borrower Company and its Subsidiaries) and fees and expenses otherwise due and payable by the Company or any Restricted Subsidiary and permitted to be paid by the Company or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Company or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(gh) the Borrower Company or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Company or other acquisition or retirement for value any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) within sixty (60) days following the Borrower by any futureconsummation of a Specified Disposition, present or former employee or director of the Borrower Company or any of its Subsidiaries pursuant may pay dividends to any employee or director equity plan, employee or director stock option plan the Holding Company (or any other employee direct or director benefit plan indirect parent thereof) with all or any agreement (including any stock subscription or shareholder agreement) with any employee or director portion of the Permitted Specified Disposition Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant Subsidiaries to this clause pay such dividend;
(fk) does not exceed in any fiscal year of the Borrower $15,000,000 within sixty (which shall increase to $20,000,000 subsequent to 60) days following the consummation of a Qualifying IPOPermitted LifeCell Disposition, with unused amounts in the Company or any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect of its Subsidiaries may pay dividends to the following provisoHolding Company (or any direct or indirect parent thereof) with all or any portion of $30,000,000 in any calendar year the Permitted LifeCell Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (which shall increase to $40,000,000 subsequent 10) Business Days prior to the consummation payment of a Qualifying IPO)such dividend of the intent of the Company or any of its Subsidiaries to pay such dividend;
(hl) so long as the Company or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 the Company shall have been in compliance, on a Pro Forma Basis, with the Financial Covenants as of the end of the most recent Test Period and (such amount to be increased to $100,000,000 upon B) the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional such Restricted Payments Payment in an amount (together with the aggregate amount in excess of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom$50,000,000, the Lead Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(lm) the declaration and payment by the Company of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Company or the Holding Company following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Company in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 3 contracts
Sources: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except (a) the Borrower or any Subsidiary may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in shares of its Qualified Equity Interests or options to purchase Qualified Equity Interests; (ib) each Subsidiaries may declare and make Restricted Subsidiary Payments ratably with respect to their Equity Interests; (c) so long as no Event of Default has occurred and is continuing, the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for present or former officers, directors, consultants or employees of the Borrower and to other Restricted its Subsidiaries (i) in existence on the Closing Date and listed on Schedule 6.04 and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments other such plans adopted following the Closing Date in an aggregate amount pursuant to the Borrower and this subclause (ii) not to exceed $30,000,000 in any other Restricted Subsidiary and to each other owner of Equity Interests fiscal year (with unused amounts of such Restricted Subsidiary based on their relative ownership interests of base amount available for use succeeding fiscal years so long as the relevant class of Equity Interests;
aggregate amount expended pursuant to this subclause (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactionsii) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
fiscal year does not exceed $45,000,000); (d) [reserved]; (e) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 6.07 (other than Section 7.08(f6.07(a);
); (ef) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
; (fg) the Borrower so long as no Event of Default has occurred and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdingsis continuing, the Borrower may pay dividends on, or repurchase or redeem, its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, Equity Interests in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments$45,000,000 for the year beginning on the Closing Date through the first anniversary of the Closing Date, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed for each year thereafter ending on the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as anniversary of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromClosing Date, the Borrower may make additional Restricted Payments in an amount (together with permitted during the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized previous year multiplied by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)1.1.
Appears in 3 contracts
Sources: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Borrower) or 7.08 (other than Section 7.08(f7.08(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent of the Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower (or of any direct or indirect parent of the Borrower) in connection with any such repurchase, retirement or other acquisition or retirement);
(g) the Borrower may make Restricted Payments to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) its operating costs and expenses incurred in the ordinary course of business and other overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) legal existence;
(iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) or (2) the merger or amalgamation (to the extent not prohibited by Section 7.04) of the Person formed or acquired into the Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) in order to consummate such Permitted Acquisition, in each case, in accordance with the applicable requirements of Section 6.11;
(v) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any equity or debt offering not prohibited by this Agreement (whether or not successful) and directly attributable to the operation of the Borrower and its Restricted Subsidiaries; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries, only to the extent such amounts are deducted, for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, in calculating Consolidated EBITDA for any period;
(h) the Borrower or any of its Subsidiaries; providedRestricted Subsidiaries may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, however, that the aggregate amount split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments made pursuant to this clause (f) does not exceed in lieu of fractional shares in connection with any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)such conversion;
(hi) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, officer, manager or consultant (or any Controlled Investment Affiliate or Immediate Family Member) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; and
(l) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(i)(D) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (Ai) the greater of $75,000,000 250,000,000 and 2.125% of Total Assets, in each case determined at the time of such Restricted Payment, and (ii) so long as immediately after giving effect to such amount to be increased to $100,000,000 upon Restricted Payment, the Total Leverage Ratio as of for the last day of any Test Period being immediately preceding such Restricted Payment calculated on a pro forma basis for such Restricted Payment in accordance with Section 1.10 is less than 5.0 or equal to 6.5 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include Available Amount at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 3 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Restricted Payments. Declare Directly or makeindirectly declare, directly pay or indirectly, make any Restricted Payment; provided, exceptthat this Section 6.08 shall not be deemed to prohibit:
(a) (i) each Restricted the payment of dividends or distributions in cash by any Subsidiary may make Restricted Payments to Holdings, Holdings to the Borrower and Parent or any Wholly-Owned Domestic Subsidiary Guarantor (or to other Restricted Subsidiaries and (ii) each nonany Wholly-wholly owned Restricted Owned Foreign Subsidiary may make Restricted Payments to Guarantor if the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests maker of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsdividend or distribution is a Foreign Subsidiary);
(b) cash distributions (i) by the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in members of the Equity Interests Operating Group (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(dFHC) to the extent constituting Restricted Payments, the Borrower Parent and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) by Parent to the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessPermitted Holders, in each case, with respect to each taxable year during which Parent is a partnership or a disregarded entity for federal income tax purposes in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable the aggregate of the maximum federal and customary indemnification claims made by directors state income tax liability of the shareholders or officers partners of Holdings Parent, as applicable (or any direct or indirect parent thereofassuming that all of such shareholders and partners are taxed at the maximum permissible federal and Ohio state rates of such shareholders and partners) attributable to the ownership or operations taxable income of the Borrower and its Subsidiaries;
Operating Group (iiiother than the FRIC Group) for such taxable year, computed in accordance with the proceeds Code, in each case so long as Parent applies the amount of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02such distribution for such purpose; provided that (A) however no such Restricted Payment distributions shall be made substantially concurrently with respect to a taxable period until the closing aggregate amount of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed losses allocable to the Borrower or its Restricted Subsidiaries or (2) Parent and such other equity holders from prior periods have been fully recovered by allocations from the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses Operating Group (other than to Affiliatesthe FRIC Group) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiariestaxable income; provided, however, that upon FHC becoming a Subsidiary of Holdings, FHC will be included in the aggregate amount Operating Group for the purposes of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO6.08(b);
(hc) so long non-cash dividend payments or other non-cash distributions, including payments of in-kind interest on the Techwoods Debt in accordance with the Techwoods Loan Agreements, paid solely in-kind (and in any event not in Disqualified Equity Interests);
(d) distributions in cash to Parent as necessary to permit Parent to maintain its legal existence and to pay reasonable out-of-pocket general administrative costs and expenses incurred in the Ordinary Course of Business;
(e) cash distributions by Parent to its equityholders of amounts received in respect of the residual equity interest owned by any Loan Party in any Excluded Subsidiary; provided that (i) immediately prior to and after giving effect to such Restricted Payment no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (ii) loans no portion of any management fee, servicing fee (or other similar fee) payable by any Excluded Subsidiary to the Borrower or any other Loan Party may be included in any such Restricted Payment; and
(f) upon the expiration of the Delayed Draw Term Loan Commitment Period (and advances made pursuant not at any time prior thereto) and no more than one (1) time in any Fiscal Year, cash distributions by Parent to Section 7.02(m) its equityholders in lieu of Restricted Payments permitted by this clause (h), amount not to exceed the sum of (A) $75,000,000 (Restricted Payments Basket then in effect so long as immediately prior to and after giving effect to such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
Restricted Payment (i) so long as no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom, (ii) the Borrower may make additional Effective Advance Rate is not greater than 35%, which Effective Advance Rate shall be confirmed by a Validation Agent Report delivered to Agent no later than fifteen (15) days prior to the date of such distribution, (iii) there shall be no Overadvance (as determined by a Borrowing Base Certificate computed both immediately prior to and after giving effect to such Restricted Payments Payment, in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized each case as confirmed by the Borrower Validation Agent), (iv) the Loan Parties shall have minimum Liquidity of not less than $3,750,000, and (v) the Agent shall have received all reporting required under Section 5.04(a) for the most recent Fiscal Year then immediately ended and the Restricted Subsidiaries Loan Parties shall otherwise be in the form of refunds or deductions realized in connection compliance with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”5.04(a) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)thereof.
Appears in 3 contracts
Sources: Forbearance Agreement and Ninth Amendment to Credit Agreement (Unifund Financial Technologies, Inc.), Credit Agreement (Unifund Financial Technologies, Inc.), Credit Agreement (Unifund Financial Technologies, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) Restricted Payments to Holdings, the Borrower or any other Restricted Subsidiary;
(i) each Restricted Subsidiary Holdings may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests in exchange for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent capital contributions or issuances of new Equity Interests, provided that any terms and provisions material to the Borrower and interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to other Restricted Subsidiaries the Lenders as those contained in the Equity Interests redeemed thereby and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary Holdings may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonHoldings;
(c) Holdings may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, 1) no Event of Default is continuing or contemplated by, the Transaction Agreementwould result therefrom and (2) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the Transactions) in connection with, Senior Secured Net Leverage Ratio calculated on a Pro Forma Basis is less than or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoequal to 3.00:1.00;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)) or Section 7.07 (other than Section 7.07(j));
(e) repurchases of Equity Interests in the Borrower ordinary course of business of Holdings (or any Restricted Subsidiary direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) Holdings may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings and its Restricted Subsidiaries;
(g) Holdings may make Restricted Payments in an aggregate amount not to exceed the Available Amount; provided that with respect to Restricted Payments made in reliance on the Growth Amount, (x) no Event of Default would result therefrom and (y) the Total Net Leverage Ratio shall not exceed the Total Net Leverage Ratio as of the Closing Date on a Pro Forma Basis;
(h) Holdings may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrower or any Restricted Subsidiary; provided that such payments shall not exceed $5,000,000 in any calendar year (or, after a Qualifying IPO, the greater of (x) $8,000,000 and (y) 15.0% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(h) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000 in any calendar year (or, after the Qualifying IPO, the greater of (x) $14,000,000 and (y) 25.0% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period); provided further that, cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings and, to the extent contributed to the capital of Holdings (other than through the issuance of Disqualified Equity Interests), Equity Interests of any parent entity of Holdings, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or any parent entity thereof that occurred after the Closing Date, in each case to the extent not otherwise applied under this Agreement or constituting a Cure Amount; plus
(ii) the cash proceeds of key man life insurance policies received by Holdings and its Restricted Subsidiaries after the Closing Date; less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this proviso;
(i) Holdings may make additional Restricted Payments in an amount not to exceed $1,000,000; provided that no Specified Event of Default has occurred and is continuing or would result therefrom;
(j) Holdings may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction similar Tax liability of Holdings (or any direct or indirect parent thereof) such parent’s income Tax that is attributable to the income of Holdings, the Borrower or its their respective Subsidiaries; provided that Holdings, the Borrower, and their applicable Subsidiaries determined as if are members of a consolidated, combined, or unitary group for U.S. federal tax purposes of which the direct or indirect parent of Holdings is the common parent; provided further that no such payments shall exceed the Tax liability that would have been imposed on Holdings, the Borrower and/or the applicable Subsidiaries had such entities filed a consolidated, combined, unitary or similar Tax return where Holdings was the parent entity of such group and the only subsidiaries of Holdings were Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) [reserved], (y) fees and expenses (other than such owed to Affiliates) (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in Holdings to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(j), ) which are in each case reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of Holdings attributable to the direct or indirect ownership or operations of the Borrower Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by Holdings or any Restricted Subsidiary and permitted to be paid by Holdings or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise Taxes, and other feesfees and expenses, taxes and expenses in each case required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a which shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Holdings Election Event shall occuror any other direct or indirect parent company of Holdings, including Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted Subsidiaries;
(v) to finance any Investment made by such direct or indirect parent that, if made by Holdings, would be permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower Holdings or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)6.13; andand/or
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings to (or any direct or indirect parent thereofA) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement and (B) without duplication, to pay Public Company Costs;
(gk) Holdings may make Restricted Payments in connection with the Transactions (other than clause (c) of the definition thereof);
(l) [reserved];
(m) Restricted Payments in an amount equal to the aggregate amount of cash contributions made after the Closing Date to Holdings and contributed to the Borrower may pay in exchange for the repurchase, retirement or other acquisition or retirement for value of Qualified Equity Interests of Holdings, except to the Borrower extent utilized in connection with any other transaction permitted by Section 7.02 or Section 7.08, and except to the extent such amount increases the Available Amount or constitutes a Cure Amount;
(n) [reserved];
(o) [reserved];
(p) the declaration and payment of dividends on Disqualified Equity Interests incurred in accordance with Section 7.03;
(q) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of the Borrower or any Equity Interests in consideration of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (such payments including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized deemed repurchases in connection with the Transactions;
(j) so long as no Default shall have occurred exercise of stock options or warrants and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds vesting of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred restricted stock and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromrestricted stock units; and
(lr) the declaration distributions or payments of Securitization Fees, sales contributions and payment other transfers of dividends Securitization Assets or Receivables Assets and distributions on the Equity Interests purchases of any Securitization Assets or Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Permitted Receivables Management Subsidiary)Financing.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);
(g) the Borrower may make Restricted Payments in an aggregate amount equal to when combined with the amount applied to make prepayments of Junior Financing pursuant to Section 7.13(a)(v) (x) $100,000,000, plus (y) ifthe portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.25:1.00, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph, such election to1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom;
(h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to paypay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; and
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant up to this clause (f) does not exceed in any fiscal year 6% per annum of the net proceeds received by (or contributed to) the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying and its Restricted Subsidiaries from such Qualified IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);; and
(hk) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 3 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings, the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the date the Company delivers an irrevocable written notice to the Administrative Agent stating that the Company will make Restricted Payments in connection with the Transaction (including any amounts to Holdings that are used by Holdings solely to fund cash interest payments required to be paid under, or contemplated bymade by Holdings (the “Holdings Restricted Payments Election”), the Transaction Agreement) and the fees and expenses related thereto owed Company may make such Restricted Payments to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoHoldings;
(d) Restricted Payments made on the Closing Date to consummate the Transaction;
(e) to the extent constituting Restricted Payments, Holdings, the Borrower Company and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(ef) repurchases of Equity Interests in Holdings, the Borrower Company or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings (or the Company after a Qualifying IPO of the Company) may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such parent of Holdings or of the Company after a Qualifying IPO of the Company) by any future, present or former employee or director of Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Holdings or any of its Subsidiaries;
(h) the Borrower Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofsuch parent) attributable to Holdings, the Borrower Company or its Subsidiaries determined as if the Borrower Company and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereofof Holdings to pay) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower Company and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a the proceeds of which shall be used by Holdings Election Event shall occur, to make Restricted Payments permitted by Section 7.06(g);
(v) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)6.11; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Company may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii2) loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) $75,000,000 200,000,000, (such ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to be increased to $100,000,000 upon Section 8.05) that are Not Otherwise Applied and (iii) if the Total Leverage Ratio as of the last day of any the immediately preceding Test Period being less than 5.0 (after giving Pro Forma Effect to 1.0such additional Restricted Payments) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing is 5.50:1 or would result therefromless, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16Cumulative Excess Cash Flow that is Not Otherwise Applied; provided, however, that the Borrower Company shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will not make such dividends and distributions (the “any Restricted Payments Interest Expense Election”pursuant to this Section 7.06(i) during the Pre-IPO Period. For the purpose of this Agreement, “Cumulative Excess Cash Flow” means the sum of Excess Cash Flow (but not less than zero in respect of any period) for the Indebtedness specified in such notice only so long as no Default shall have occurred fiscal year ending on December 31, 2006 and be continuing or would result therefrom; and
(l) the declaration Excess Cash Flow for each succeeding and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).completed fiscal year;
Appears in 3 contracts
Sources: Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (GL Trade Overseas, Inc.)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 Section 7.07 (other than than, in each case, by reference to this Section 7.08(f7.06(d));
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower or any of its SubsidiariesSubsidiary, including withholding and similar Taxes related to such payments; provided, however, provided that the aggregate amount of such payments made pursuant to this clause (f) does do not exceed $20,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to the succeeding calendar years subject so long as the aggregate amount of all Restricted Payments made pursuant to a maximum (without giving effect to the following provisothis Section 7.06(f) of $30,000,000 in any calendar year (which after giving effect to such carry-forward) shall increase to not exceed $40,000,000 subsequent to the consummation of a Qualifying IPO40,000,000);
(g) [reserved];
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of issuing fractional Equity Interests and (ii) perform its obligations under convertible Indebtedness, including without limitation Permitted Convertible Indebtedness;
(j) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountamount not to exceed $35,000,000 in the aggregate;
(k) [reserved];
(l) [reserved];
(m) the distribution, together with by dividend or otherwise, of Equity Interests or Indebtedness owed to the aggregate amount Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so long as the primary assets of such Unrestricted Subsidiary are not cash or Cash Equivalents;
(n) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) prepayments, redemptions, purchases, defeasances no Event of Default has occurred and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) is continuing and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Net Leverage Ratio as of the last day of the most recently ended Test Period, after giving Pro Forma Effect to such Restricted Payment, is not greater than (A) on any Test Period being date of determination prior to December 31, 2023, the Total Net Leverage Ratio that is 0.50 to 1.00 less than 5.0 to 1.0) the maximum Total Net Leverage Ratio applicable under the TNLR Financial Covenant at such time and (B) on any date of determination on or after December 31, 2023, the Cumulative Growth Amount;Total Net Leverage Ratio that is 0.25 to 1.00 less than the maximum Total Net Leverage Ratio applicable under the TNLR Financial Covenant at such time; and
(io) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified in an amount not to exceed $175,000,000 in any calendar year to repurchase common Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice solely to the extent such holder (necessary to offset dilution of the Borrower’s common Equity Interests resulting from Equity Interests issued or its affiliates) participates granted to channel partners and contractors or in the Receivables Management Business connection with director or employee compensation or benefit plans (including as a lender or financier under any financing provided to a Receivables Management Subsidiaryresult of vesting).
Appears in 3 contracts
Sources: Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each non-wholly owned and, in the case of a Restricted Payment by a Restricted Subsidiary may make Restricted Payments that is not wholly-owned directly or indirectly by the Lead Borrower, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings and the Borrower Intermediate Holding Company may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or, to the extent not included in the Available Amount, with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that (i) any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) Holdings, the Borrowers and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson on a ratable basis to its shareholders;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, Holdings, the Borrower Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f7.08(vi);
(e) repurchases of Equity Interests in Holdings, the Borrower Borrowers or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or withholding of shares of restricted stock upon vesting;
(f) the Holdings, any Borrower and its or any Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent thereof) held by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Holdings, any Intermediate Holding Company, any Borrower (or any direct or indirect parent of the Borrowers) or any of their respective Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrowers or any of their Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) attributable shall not exceed (x) $5,000,000 in any calendar year (which shall increase to $10,000,000 subsequent to the consummation of a Qualifying IPO) (with unused amounts in any calendar year being carried over to the immediately two succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to a Borrower, the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Specified Equity Contributions) of Holdings or the Intermediate Holding Company and, to the extent contributed to Holdings or the Intermediate Holding Company, Equity Interests of any of the Borrowers’ direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, the Intermediate Holding Company, the Borrowers, any of their Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date to the extent such Net Cash Proceeds are not utilized in connection with other transactions pursuant to Sections 7.02, 7.06 or 7.12; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings, the Borrowers or their Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); provided, further, that cancellation of Indebtedness owing to Holdings or any Borrower from members of management of Holdings or its such Borrower, any of the Borrowers’ direct or indirect parent companies or any of the Borrowers’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrowers’ direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further, that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (f) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as if of the Borrower Closing Date; provided, further, that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed (x) $30,000,000 in any calendar year (including any amounts carried over) unless both immediately prior to and its Subsidiaries filed separatelyafter giving Pro Forma Effect to such Restricted Payment, the Pro Forma Excess Availability Condition shall have been satisfied;
(iig) Holdings, the Intermediate Holding Company and the Borrowers may make Restricted Payments to any direct or indirect parent of Holdings, the Intermediate Holding Company and the Borrowers:
(i) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of Holdings, the Intermediate Holding Company and the Borrowers attributable to the ownership or operations of Holdings, the Borrower Intermediate Holding Company, the Borrowers and its their respective Subsidiaries);
(ii) the proceeds of which will be used to pay consolidated or combined federal, state or local income Taxes attributable to the income of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries in an amount not to exceed the income Tax liabilities that would have been payable by Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries on a stand-alone basis, reduced by any such income Taxes paid or to be paid directly by Holdings, the Intermediate Holding Company, the Borrowers or their respective Subsidiaries; provided that, in determining the stand-alone income Tax liability of Holdings, the Intermediate Holding Company, the Borrowers and their respective Subsidiaries, any interest expense of a direct or indirect parent of Holdings, the Intermediate Holding Company and the Borrowers substantially all of whose assets consist (directly or indirectly) of equity and debt of Holdings, the Intermediate Holding Company or the Borrowers, shall be treated as an interest expense of Holdings. the Intermediate Holding Company or the Borrowers, as the case may be;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or so long as its direct or indirect parents directly or indirectly own no other assets than the Equity Interest in Holdings, the Intermediate Holding Company, the Borrowers or any of its their direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings Holdings, the Intermediate Holding Company or the Borrower, as the case may be, shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the a Borrower or its a Subsidiary Guarantor (or, if permitted pursuant to Section 7.02, any other Restricted Subsidiaries Subsidiary) or (2) the merger (to the extent permitted in pursuant to Section 7.04) of the Person formed or acquired into the a Borrower or its a Subsidiary Guarantor (or, if permitted pursuant to Section 7.02, any other Restricted Subsidiaries Subsidiary) in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of Holdings, the Intermediate Holding Company and the Borrowers to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings, the Borrowers and their respective Restricted Subsidiaries;
(gh) Holdings, the Intermediate Holding Company, any Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the Borrower may pay for declaration and payment of dividends following the repurchase, retirement first public offering of Holdings’ or other acquisition any of its direct or retirement for value indirect parent’s common stock after the Closing Date of Equity Interests up to 6.00% per annum of the net proceeds received by or contributed to the Lead Borrower from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted pursuant to Section 7.02, 7.06 or 7.12;
(j) payments made or expected to be made by Holdings, the Intermediate Holding Company, the Borrowers or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, Holdings, the Borrower Intermediate Holding Company and the Borrowers may make additional Restricted Payments (i) in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances loans and other payments in respect advances to any direct or indirect parent of Junior Financings the Borrowers made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hk), not to exceed (x) $10,000,000 or (y) if both immediately prior and after giving Pro Forma Effect to such Restricted Payment the sum Pro Forma Excess Availability Condition shall have been satisfied, $25,000,000 (satisfaction of such condition shall be evidenced by a certificate from the Chief Financial Officer or other financial officer of the Lead Borrower demonstrating such satisfaction calculated in reasonable detail); provided that, such amount shall be increased by (A) $75,000,000 the Net Cash Proceeds of Permitted Equity Issuances (other than Specified Equity Contributions or amounts included in the Available Amount) that are Not Otherwise Applied and (B) the Available Amount that is Not Otherwise Applied, and (ii) (A) to the extent that on a pro forma basis after giving effect to any such amount to be increased to $100,000,000 upon Restricted Payment the Total Leverage Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of any the immediately preceding Test Period being less than 5.0 for which financial statements have been delivered pursuant to 1.0Section 6.01(i) or Section 6.01(ii), is at least 1.25 to 1.0 and (B) if the Cumulative Growth Amount;
(i) so long as Pro Forma Excess Availability Condition has been satisfied both immediately before and immediately after giving Pro Forma Effect thereto and no Default shall have occurred and be continuing or Event of Default exists or would result therefrom;
(l) Holdings and each Restricted Subsidiary may make Restricted Payments, in each case as applicable, to Holdings or any direct or indirect parent of Holdings, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant Borrowers and to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the other Restricted Subsidiaries in order to effectuate any management equity reinvestment and award program as contemplated by the form of refunds or deductions realized in connection subscription agreements with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds applicable members of management of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing Company executed on or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromClosing Date; and
(lm) Holdings and each Restricted Subsidiary may make Restricted Payments, in each case as applicable, to Holdings or any direct or indirect parent of Holdings, the declaration Borrowers and payment of dividends and distributions on to other Restricted Subsidiaries with respect to any Per Share Escrow Payments (as defined in the Equity Interests of any Receivables Management Subsidiary Merger Agreement) to be paid to Persons who, immediately prior to the Effective Time (as defined in the Merger Agreement), were holders of minority interests substantially consistent with past practice to the extent such holder Company Common Stock, Company Stock Options, Company Restricted Shares, Company Performance RSUs and Company RSUs (or its affiliates) participates in each case, as defined in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management SubsidiaryMerger Agreement).
Appears in 2 contracts
Sources: Credit Agreement (Dominion Textile (Usa), L.L.C.), Credit Agreement (Dominion Textile (Usa), L.L.C.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in respect of working capital adjustments or purchase price or other adjustments and payments and to satisfy indemnity reimbursement and other similar obligations in each case under an acquisition agreement in connection with the Transaction (including any amounts to be paid under, Permitted Acquisition or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoother Permitted Investment;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted (other than by reference to Section 7.06) by any provision of Section 7.04 7.02, Section 7.04, Section 7.07(e) or 7.08 other than Section 7.08(f7.07(m);
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any similar agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed the greater of (x) $3,000,000 and (y) 5.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any calendar year; provided that any unused portion of the preceding basket for any calendar year may be carried forward to the next succeeding calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the consolidated, combined or similar income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) such parent’s income tax group that is attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if Subsidiaries; provided that (x) no such payments shall exceed the income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and its Subsidiaries filed separately(y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose (any such Restricted Payments, a “Tax Distribution”);
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g), ) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.10;
(v) if a Holdings Election Event the proceeds of which shall occurbe used to pay customary costs, fees and expenses (other than to Affiliates (other than Debt Fund Affiliates)) related to any successful or unsuccessful equity or debt offering or amendment thereof permitted or not prohibited by this Agreement;
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) taxes related to any unsuccessful equity restricted stock units held by current or debt offering permitted by this Agreement;former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees); and
(gviii) (A) costs and expenses related to an initial public offering (whether or not such initial public offering was in fact consummated) and (B) after the Borrower may pay for the repurchaseconsummation of Qualifying IPO, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of Public Company Costs,
(h) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of its Subsidiaries declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to any employee or director equity plan, employee or director stock option plan or any this Section 7.06(h) shall be deemed to have utilized capacity under such other employee or director benefit plan or any agreement provision of this Agreement);
(including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hj) so long as no Event of Default shall have occurred and be continuing or would result therefrom , the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed (i) the greater of (x) $12,500,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period minus (ii) the amount of any Investments made pursuant to Section 7.02(t) minus (iii) the amount of any prepayments of Junior Debt made pursuant to Section 7.08(a)(iii); provided that, at the time of any such Restricted Payment, the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.50:1.00.
(k) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional or any Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that at the time of any such Restricted Payment, after giving effect thereto, the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 4.50:1.00;
(together l) after a Qualifying IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed (x) 6% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualifying IPO;
(m) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) no Event of Default has occurred and is continuing and (ii) the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.50:1.00;
(n) the distribution, by dividend or otherwise, of Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary);
(o) [reserved];
(p) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the aggregate amount exercise of Investments stock options or warrants and the vesting of restricted stock and restricted stock units; and
(q) distributions or payments of fees, sales contributions and other transfers of Receivables Assets and purchases of Receivables Assets pursuant to a Receivables Repurchase Obligation, in each case in connection with a Permitted Receivables Financing. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower shall, in its sole discretion, classify or divide such Restricted Payment (or any portion thereof) in any manner that complies with this covenant and may later divide and reclassify any Restricted Payment (or any portion thereof) so long as the Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception or exceptions as of the date of such reclassification. Any Restricted Payment made pursuant to Section 7.02(v7.06(j)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k), or (m) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided limited to a Receivables Management Subsidiary)dividend, distribution or payment made in cash.
Appears in 2 contracts
Sources: Credit Agreement (KORE Group Holdings, Inc.), Credit Agreement (King Pubco, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings and to other another Restricted Subsidiaries and Subsidiary that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any such other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonPerson (for the avoidance of doubt, any Restricted Subsidiary may declare and make such dividend payment or distribution paid in Equity Interests to Holdings);
(c) Holdings may make Restricted Payments in connection with the Transaction (including any amounts cash proceeds contributed to be paid under, or contemplated by, its common equity from the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement Net Cash Proceeds of any claims or actions (whether actualPermitted Equity Issuance Not Otherwise Applied, contingent or potential) so long as, with respect theretoto any such Restricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom;
(d) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions take actions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Sections 7.02(e) and (n)), 7.04, 6.18 or 7.13 (in each case, other than by reference to this Section 7.08(f7.06 (or any clause under this Section 7.06));
(e) repurchases of Equity Interests in the Borrower or Holdings and any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofParent Holding Company:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings Parent Holding Company to pay (or any direct to make a Restricted Payment to or indirect parent thereofInvestment in another Parent Holding Company to enable it to pay) to pay (a) such Parent Holding Company’s operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) attributable Parent Holding Company not to exceed the ratable share of the amount to which such Restricted Payment relates that is related to the ownership or operations of Holdings or the Borrower Restricted Subsidiaries or (b) to pay such fees and other amounts directly;
(ii) for any taxable period for which Holdings or any of its Subsidiaries are members of a consolidated, combined, unitary, affiliated or similar income Tax or VAT group of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), the portion of any income Taxes (and any consolidated, combined, unitary, affiliated or similar franchise or similar Taxes imposed in lieu of such income Taxes of such Tax Group) or VAT due by the parent company of the relevant Tax Group for such taxable period, that is attributable to Holdings and/or its applicable Subsidiaries, provided that (A) Restricted Payments under this Section 7.06(e)(ii) for any taxable period shall not exceed the amount of such Taxes that Holdings and/or such Subsidiaries, as applicable, would have paid had Holdings and/or such Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) and (B) Restricted Payments under this Section 7.06(e)(ii) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Holdings or any of the Restricted Subsidiaries for such purpose;
(iii) the proceeds of which shall will be used to repurchase, retire or otherwise acquire the Equity Interests of Parent Holding Company, Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to or an Investment in another Parent Holding Company or a direct or indirect equity holder thereof to enable it to repurchase, retire or otherwise acquire its Equity Interest) from directors, managers, consultants, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in each case in connection with the resignation, termination, death or disability of any such directors, managers, employees or members of management, in an aggregate amount not in excess of the greater of (x) $50,000,000 and (y) 1.0% of Consolidated Total Assets in any calendar year (with unused amounts in any calendar year being permitted to be carried over for succeeding calendar years); provided further that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance received by Holdings (or a Parent Holding Company), the Parent Borrower or any direct or indirect parent thereofother Restricted Subsidiary (solely with respect to the calendar year in which such proceeds are received and without limiting any carry-over thereof permitted above), plus (B) to pay franchise taxes the extent contributed in cash to the common equity of Holdings or any Restricted Subsidiary and other feesnot theretofore utilized to make a Restricted Payment under this clause (e)(iv), taxes and expenses required the Net Cash Proceeds from the sale of Equity Interests of Holdings or any Parent Holding Company, in each case to maintain its (members of management, managers, directors or consultants of Holdings or any of its Subsidiaries or any Parent Holding Company that occurs after the Closing Date (provided that in no event shall any such contributed amounts increase the Cumulative Credit) plus (C) the amount of any cash bonuses or other cash compensation otherwise payable to any future, present or former director, manager, employee, member of management or consultant of Holdings or a direct or indirect parents’) corporate existenceequity holder thereof, Parent Borrower or any other Restricted Subsidiary that are foregone in return for the receipt of Equity Interests of Holdings or a direct or indirect equity holder thereof, Parent Borrower or any other Restricted Subsidiary pursuant to a deferred compensation plan of such equity;
(iv) the proceeds of which are applied to the purchase or other acquisition by any Parent Holding Company of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or more than 50% of the Equity Interests in a Person that; provided that if such purchase or other acquisition had been made by Holdings or any Restricted Subsidiary, it would have constituted a Holdings Election Event shall occur, to finance any Investment Permitted Acquisition permitted to be made pursuant to Section 7.027.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings any Parent Holding Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary (other than (i) with respect to such assets, to any Foreign Subsidiaries of the U.S. Borrower and (ii) to the extent such Equity Interests constitute Foreign Subsidiaries, to the U.S. Borrower or any of its Restricted Subsidiaries Subsidiaries) or (2) the merger (to the extent permitted in Section 7.04) into any Restricted Subsidiary (other than the U.S. Borrower or any of its Subsidiaries to the extent constituting a Foreign Subsidiary) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchaser or other acquisition;
(v) if repurchases of Equity Interests of a Holdings Election Event shall occur, Parent Holding Company deemed to occur upon the non-cash exercise of stock options and warrants or similar equity incentive awards;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) a Parent Holding Company to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof Parent Holding Company to pay) , other than to Affiliates of Holdings, a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings or offering or debt offering issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement, in each case not to exceed the ratable share of the amount to which such Restricted Payment relates that is directly related to the operations of Holdings and the Restricted Subsidiaries;
(gvii) the Borrower may proceeds of which shall be used to pay for customary salary, bonus and other benefits payable to officers, employees, consultants and independent contractors of any Parent Holding Company to the repurchaseextent such salaries, retirement bonuses and other benefits are attributable to the ownership or other acquisition operation of Holdings or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; providedand
(f) in addition to the foregoing Restricted Payments, however, that the Borrowers may make additional Restricted Payments to a Parent Holding Company in an aggregate amount not to exceed (1) the greater of $400,000,000 and 6.0% of Consolidated Total Assets (less the aggregate amount of payments made all prepayments, redemptions, purchases, defeasements and other satisfaction prior to the scheduled maturity of Junior Financing and Permitted Refinancings thereof pursuant to Section 7.13(iv)) plus (2) an amount (which shall not be less than zero) equal to the portion, if any, of the Cumulative Credit on the date of such election that the applicable Borrower elects to apply to this clause (f) does not exceed Section 7.06(f)(2), such election to be specified in any fiscal year a written notice of a Responsible Officer of the Borrower $15,000,000 Representative calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that, in the case of this Section 7.06(f)(2), (which shall increase A) immediately before and immediately after giving Pro Forma Effect to $20,000,000 subsequent to the consummation any such Restricted Payment, no Event of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromand (B) immediately after giving effect to any such Restricted Payment, the Borrower Parties would be permitted to Incur at least $1.00 of unsecured Permitted Additional Debt;
(g) [reserved];
(h) Holdings and any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional shares in connection with any dividend, redemptions, purchases, defeasances and other payments in respect split or combination of Junior Financings made pursuant to Section 7.13(a)(ivits Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion;
(i) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 7.06;
(j) the Borrower Parties may make Restricted Payments permitted by this clause (h), to a Parent Holding Company so that Parent Holding Company may make Restricted Payments to its equity holders or the equity holders of any other Parent Holding Company in an aggregate amount not to exceed exceeding the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day Net Cash Proceeds received by the Borrower Parties from any public offering of common stock or contributed to the Borrower Parties by any direct or indirect parent of any Test Period being less than 5.0 to 1.0) Borrower Party from any public offering of common stock and (B) the Cumulative Growth Amountan aggregate amount per annum not to exceed 7.0% of Market Capitalization;
(ik) so long as no Default shall have occurred Holdings and be continuing or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an amount equal to any Taxes payable, including, but not limited to, withholding or similar Taxes payable or expected to be payable, in connection with any payments to any present or former employee, director, officer, manager, consultant or independent contractor (together or their respective Affiliates, estates or immediate family members) or in connection with the aggregate amount any repurchases, of Investments made pursuant to Section 7.02(v)) not to exceed any reduction Equity Interests in taxes realized by the Borrower and the Restricted Subsidiaries in the form consideration of refunds or deductions realized such payments including deemed repurchases in connection with the Transactionsexercise of stock options or grant, vesting or delivery of any Equity Interests;
(jl) additional Restricted Payments so long as no Default shall have occurred and be continuing or would result therefromafter giving Pro Forma Effect to such Restricted Payments, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromTotal Net Leverage Ratio does not exceed 3.00:1.00; and
(lm) the declaration and payment of dividends and or distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) of Holdings; provided, however, that (A) for the most recently ended Test Period, at the Borrowers’ option, either (I) the Fixed Charge Coverage Ratio of Holdings and its Restricted Subsidiaries is 2.00 to 1.00 or greater or (ii) the Total Net Leverage Ratio does not exceed 5.50 to 1.00 and (B) the aggregate amount of dividends declared and paid pursuant to this clause (m) does not exceed the Net Cash Proceeds actually received by Holdings from the sale of Designated Preferred Stock; provided, further, that for purposes of calculating the Total Net Leverage Ratio for purposes of compliance with past practice clause (ii) above, Consolidated Funded Indebtedness shall include the aggregate amount of all outstanding Designated Preferred Stock of Holdings, with the amount of such Designated Preferred Stock equal to the extent greater of its voluntary or involuntary liquidation preference and Maximum Fixed Repurchase Price, in each case determined on a consolidated basis in accordance with GAAP, based on internal financial statements that are available immediately preceding such holder (or its affiliates) participates in the Receivables Management Business (including as date and calculated on a lender or financier under any financing provided to a Receivables Management Subsidiary)Pro Forma Basis.
Appears in 2 contracts
Sources: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrower or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any fiscal year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the income of the Borrower or its Subsidiaries determined as if Subsidiaries; provided that (x) no such payments shall exceed the income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and its Subsidiaries filed separately(y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureto the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) [Reserved];
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromsuch Restricted Payment in an amount in excess of $15,000,000, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(l) the declaration and payment by the Borrower of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Borrower or Holdings following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Borrower in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Epicor International Holdings, Inc.), Credit Agreement (Epicor Software Corp)
Restricted Payments. Declare The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to or any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) any member of the Borrower and each Restricted Subsidiary Group may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) Restricted Payments made on the Closing Date to consummate the Transactions;
(e) to the extent constituting Restricted Payments, the Borrower and members of the Restricted Subsidiaries Group may enter into and consummate transactions (i) make any Investment expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e)(v) and 7.02(m)), (ii) transfer assets in respect of the elimination of Equity Interests resulting from the consummation of a merger, dissolution, liquidation or consolidation in accordance with Section 7.04 or 7.08 other than (iii) make transactions permitted by Section 7.08(f7.08(e) or 7.08(j);
(ef) repurchases of Equity Interests in any member of the Borrower or any Restricted Subsidiary Group deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrants;
(fg) any member of the Restricted Group may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any present or former employee, officer, director or consultant thereof or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent thereof to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director or consultant in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) and all loans and advances made pursuant to Section 7.02(m) made in lieu of any such permitted Restricted Payment shall not exceed $30,000,000 in any fiscal year; provided, further, that that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from future, present or former employees, directors, managers or consultants of the Borrower, or any direct or indirect parent of the Borrower or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant, in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings (or may make a corresponding distributions, loans or advances to any direct or indirect parent entity) in an aggregate amount not to exceed the Cumulative Credit immediately prior to the time of the making of such Restricted Payment; provided that, with respect to any Restricted Payment made pursuant to this Section 7.06(h), no Event of Default shall have occurred and be continuing or would result therefrom;
(i) the Borrower may make Restricted Payments (or may make distributions, loans or advances to any direct or indirect parent thereof:) (without duplication):
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofA) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Restricted Subsidiaries and (B) Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) thereof to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or other organizational existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries are a member of a consolidated or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were the only members of a consolidated or similar income tax group of which the Borrower is the common parent (it being understood and agreed that if the Borrower or any Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated or similar taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) reasonable and customary fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by Holdings (or any direct or indirect parent thereof) not prohibited by this Agreement;
(g) Agreement that is directly attributable to the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests operations of the Borrower by any future, present or former employee or director of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lvii) the declaration proceeds of which shall be used to make payments permitted under Sections 7.08(e), 7.08(h), and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice 7.08(j) (but only to the extent such holder (payments have not been and are not expected to be made by the Borrower or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Restricted Subsidiary).;
Appears in 2 contracts
Sources: Credit Agreement (Surgery Partners, Inc.), Term Loan Amendment (Surgery Partners, Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments the payment of any distribution or other action which the Borrower believes in good faith is necessary either to maintain the Borrower’s status as a real estate investment trust under the Code or to enable the Borrower to avoid payment of any Tax that could be avoided by reason of a distribution or other action by the Borrower, including actions necessary to maintain the pairing arrangement of the Borrower’s Class B common stock with the Parent’s common stock (other than in connection with a voluntary share repurchase by the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBorrower);
(d) the Borrower may make a Restricted Payment with respect to preferred interests issued to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code (“REIT Distribution”) in an amount not exceeding $100,000 per annum in the aggregate;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than Section 7.02(e)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(b) and 7.08(e));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower Subsidiary may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by such Restricted Subsidiary from any future, present or former employee employee, officer, director, manager or director consultant of such Restricted Subsidiary (or the Borrower Borrower) upon the death, disability, retirement or termination of employment of any of its Subsidiaries such Person or pursuant to any employee or director equity plan, employee employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager, director, officer or director consultant of such Restricted Subsidiary (or the Borrower or any of its SubsidiariesBorrower); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fSection 7.06(g) does shall not exceed $10,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to the next succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 year); provided, further, that such amount in any calendar year (which shall increase may be increased by an amount not to $40,000,000 subsequent to exceed the consummation net cash proceeds of a Qualifying IPO)key man life insurance policies received by the Borrower or its Restricted Subsidiaries;
(h) so long as no Default shall have has occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be is continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount not to exceed the FFO Builder Basket on such date;
(i) payments or other transactions pursuant to any Tax-sharing agreement between the Borrower, any Restricted Subsidiary or any other Person with which the Borrower or the Restricted Subsidiary files a consolidated Tax return or with which the Borrower or the Restricted Subsidiary is part of a consolidated group for Tax purposes, provided that, in the case of a Tax-sharing agreement, such payments shall not exceed the amount of the Tax liability that would have been incurred by the Borrower or such Restricted Subsidiary if the Borrower or the Restricted Subsidiary had filed a separate Tax return on a stand-alone basis for the period to which such payment is attributable;
(j) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the proceeds exercise of the issuance of Qualified Equity Interests of the Borrowerstock options;
(k) if the Borrower shall become the or any Restricted Subsidiary may pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(l) [Reserved];
(m) so long as no Default shall have has occurred and be is continuing or would result therefrom, dividends additional Restricted Payments in an aggregate amount at any time outstanding not to exceed the greater of (x) $300,000,000 and distributions which will be used to fund the payment (y) an amount that would result in an Incremental Loan-to-Value Ratio of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice and the Restricted Subsidiaries as of the last day of the most recently ended Test Period on or prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect date of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromdetermination equal to 5.0%; and
(ln) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Restricted Payments that are made (i) in an amount equal to the extent amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such holder (property or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)assets was financed with Excluded Contributions.
Appears in 2 contracts
Sources: Credit Agreement (ESH Hospitality, Inc.), Credit Agreement (ESH Hospitality, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower and to other Subsidiaries of the Borrower (and, in the case of a Restricted Subsidiaries and (ii) each Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments of the Borrower, to the Borrower and any other Restricted Subsidiary of the Borrower and to each other owner of Equity Interests of such Restricted Subsidiary of the Borrower based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary of the Borrower may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, warrants or warrantsother equity-based awards;
(f) the Borrower and each Subsidiary of the Borrower may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Subsidiary of the Borrower (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, director, officer or consultant of such Subsidiary of the Borrower (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings or any parent thereof made pursuant to clause (25) of the definition of “Permitted Investments” in lieu of Restricted Payments permitted by this clause (f) shall not exceed (x) $10,000,000 in any calendar year (with 100% of the unused amounts in any calendar year being carried over to succeeding calendar years) and (y) $25,000,000 during the term of this Agreement; provided further that such amount in (x) and (y) may further be increased by an amount not to exceed:
(A) [reserved];
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower or any Subsidiary of the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed the greater of $20,000,000 and 20.0% of Consolidated EBITDA as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(iv));
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings its (or any direct or indirect parent thereofparent’s) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make dividends or distributions to allow any direct or indirect parent thereofthereof to pay) to pay franchise and similar taxes and other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) (x) for any taxable period for which Holdings and Borrower are corporations (or are disregarded entities directly or indirectly owned by a corporation) for U.S. federal income tax purposes that are included in a consolidated, combined, unitary or similar tax group (a “Tax Group”) tax return for U.S. federal income tax purposes, distributions in amounts required for Holdings (if Holdings is the parent of such Tax Group) to pay, or distributions in amounts required for the parent of such Tax Group (if Holdings is not the parent of such Tax Group) to pay the aggregate amount of consolidated, combined, unitary or similar group tax liabilities owed by Holdings or the parent of such Tax Group, as applicable, and attributable to the income of Holdings, the Borrower and its subsidiaries (if Holdings is not the parent of such Tax Group) or attributable to the income of the Borrower and its subsidiaries (if Holdings is the parent of such Tax Group), reduced by any such taxes paid directly by Holdings, the Borrower or any of its subsidiaries to the relevant taxing authority; provided, that, if Holdings is not the parent of such Tax Group, the amount of such payments does not exceed the amounts that Holdings, the Borrower, and its subsidiaries would have been required to pay had Holdings, the Borrower, and its subsidiaries been a stand-alone group for applicable tax purposes, and if Holdings is the parent of such Tax Group, the amount of such payments does not exceed the amounts that the Borrower and its subsidiaries would have been required to pay had the Borrower and its subsidiaries been a stand-alone group for applicable tax purposes; (y) for any taxable period for which the Borrower is a partnership or disregarded entity (other than wholly-owned by a corporation) for US federal income tax purposes, any distributions from the Borrower in an amount sufficient to permit PHD Group Holdings, LLC (or such other direct or indirect parent partnership of the Borrower) to make pro rata distributions (in accordance with percentage interests) to its equity owners in an amount sufficient for each of them (or their direct or indirect owners) to pay their U.S. federal, state, and local taxes (including estimated taxes) with respect to income of the Borrower and its subsidiaries for each taxable year (determined (A) without regard to any adjustments under Section 743(b) or 734(b) of the Code and (B) taking into account any allocations under Section 704(c) of the Code and the Treasury Regulations thereunder), based on an assumed tax rate equal to the highest combined U.S. federal, state, and local tax rate applicable to an individual or corporation (whichever is higher) resident in New York, taking into account (A) the character and type of income earned (and for the avoidance of doubt, without regard to any reduction in rate attributable to Section 199A of the Code), (B) the net investment income tax under Section 1411 of the Code, and (C) any applicable limitations with respect to any deductions; and (z) distributions by the Borrower and Holdings to fund payments to satisfy obligations of the Parent under the Tax Receivable Agreement (which in the case of the structure described in clause (y) would need to be sufficient assuming all distributions from PHD Group Holdings, LLC (or such other direct or indirect parent partnership of the Borrower) would be made on a pro rata basis (in accordance with percentage interests)); provided, that distributions under this clause (z) shall be permitted with respect to a taxable period (or portion thereof) only to the extent that distributions under clauses (x) or (y), as applicable, with respect to such taxable period (or portion thereof) are insufficient for the Parent to comply with its obligations under the Tax Receivable Agreement after the payment of the actual income tax liability of the Parent (such distributions described in this clause (iii), “Tax Distributions”);
(iv) if a Holdings Election Event shall occur, to finance any Investment Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 if made by the Borrower or any of its Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted the Subsidiaries of the Borrower or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if the proceeds of which (A) shall be used to pay salary, commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll social security or similar taxes thereof to the extent such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Subsidiaries of the Borrower or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Holdings Election Event shall occur, of the Borrower );
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments dividends or distributions to allow any direct or indirect parent thereof to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any direct or indirect parent thereof);
(gvii) to pay Public Company Costs; and
(viii) the Borrower may proceeds of which shall be used by Holdings to pay for the repurchase, retirement (or other acquisition to make dividends or retirement for value distributions to allow any direct or indirect parent thereof to pay) cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(i) payments made or expected to be made by Holdings, the Borrower or any of the Subsidiaries of the Borrower in respect of withholding or other payroll and other similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchase of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity based awards;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower[Reserved];
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions [Reserved];
(the “Restricted Payments Interest Expense Election”l) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom[Reserved]; and
(lm) additional Restricted Payments (the declaration proceeds of which may be utilized by Holdings to make additional dividends or distributions) so long as immediately after giving effect to such Restricted Payment, the Consolidated Total Net Rent Adjusted Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.25 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 2 contracts
Sources: First Amendment to Credit Agreement (Portillo's Inc.), First Amendment to Credit Agreement (Portillo's Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Subsidiaries (and, in the case of a Restricted Subsidiaries and (ii) each Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Holdings (and, from and after a Qualifying IPO, the Borrower) may make Restricted Payments in connection with the Transaction proceeds received by it from (including i) any amounts Permitted Equity Issuance or Permitted Subordinated Indebtedness to be paid underthe extent not required to prepay the Loans pursuant to Section 2.05(b), or contemplated by(ii) the issuance of Permitted Holdco Debt, the Transaction Agreementand (iii) and the fees and expenses related thereto owed Restricted Payments permitted under Section 7.06(f), so long as, with respect to Affiliates, including any payment to holders of Equity Interests each of the Borrower (immediately prior to giving effect to the Transactions) in connection withforegoing Restricted Payments, no Default or as a Event of Default shall have occurred and be continuing or would result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretotherefrom;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f)7.08;
(e) repurchases any Subsidiary of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries Holdings may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or and its Subsidiaries determined as if the Borrower and its Subsidiaries filed separate separately;
(ii) the proceeds of which shall be used by Holdings to pay its (or any direct or indirect parent thereofto make a Restricted Payment to Investors LLC to enable it to pay) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 500,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’to make a Restricted Payment to Investors LLC to enable it to pay) corporate existencefranchise taxes;
(iv) if the proceeds of which will be used to repurchase the Equity Interests of Holdings (or to make a Restricted Payment to Investors LLC to enable it to repurchase it’s Equity Interest) from directors, employees or members of management of Holdings Election Event shall occuror any Subsidiary (or their estate, family members, spouse and/or former spouse), in an aggregate amount not in excess of $3,000,000 in any calendar year plus the proceeds of any key-man life insurance maintained by Holdings or any of its Subsidiaries; 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 $12,000,000;
(v) to finance any Investment Permitted Acquisition permitted to be made pursuant to Section 7.02; provided provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment Permitted Acquisition and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, ;
(vi) repurchases of Equity Interests of Holdings deemed to occur upon the non-cash exercise of stock options and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)warrants; and
(vf) if a Holdings Election so long as no Default under Section 8.01(a) or (f), and no Event of Default, shall occurhave occurred and be continuing, or would result therefrom, the Borrower may make Restricted Payments to Holdings, the proceeds of which shall will be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow the interest on the Holdco Notes and interest on 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 AgreementPermitted Refinancing of the Holdco Notes;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPOforegoing Restricted Payments, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) and so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) the Administrative Agent shall have received a certificate of the Chief Financial Officer of the Borrower as to the truth and accuracy of conditions set forth in the preceding clause (i), the Borrower may make additional Restricted Payments to Holdings, the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) (x) $75,000,000 25,000,000 minus (such amount y) the aggregate of all prepayments of Senior Subordinated Notes and Permitted Refinancings thereof made pursuant to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and Section 7.14(a)(iv); plus (B) without duplication, an amount equal to the Cumulative Growth Amount;product of (I) 0.50 multiplied by (II) the remainder of (x) the Borrower’s Consolidated Net Income for the period (taken as one accounting period) commencing with the fiscal quarter ending June 30, 2009 and ending on the date of the Borrower’s most recently ended fiscal quarter for which financial statements required to be delivered pursuant to Section 6.01(a) or (b) are available at the time of such Restricted Payment (or, if Consolidated Net Income for such period is negative, less 100% of such deficit) minus (y) the product of the aggregate of all Restricted Payments made to Holdings pursuant to Section 7.06(f) multiplied by 0.65; and
(ih) so long as no Default shall have occurred from and be continuing or would result therefromafter a Qualifying IPO, the Borrower may make additional the Restricted Payments referred to in an amount clauses (together with the aggregate amount of Investments made pursuant to Section 7.02(ve)(iv), (e)(vi), (f) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiaryg).
Appears in 2 contracts
Sources: Credit Agreement (Michael Foods Inc/New), Credit Agreement (Michael Foods Inc/New)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) : each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) ); the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) ; Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) Acquisition Agreement; to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f);
(e) ); repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) ; the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed: to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus the Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); the Borrower may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.25:1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower: to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iii) ; the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
; for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (iva “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) if a Holdings Election Event with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall occurbe limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes; to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11; the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to paypay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) ; payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed the greater of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant (A) up to this clause (f) does not exceed in any fiscal year 6% per annum of the Borrower $15,000,000 net proceeds received by (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following provisoor contributed to) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional and its Restricted Subsidiaries from such Qualified IPO and (B) Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (Aw) $75,000,000 (90.0 million, so long as, on a Pro Forma Basis after giving effect to the payment of any such amount to be increased to $100,000,000 upon Restricted Payment, the Total Leverage Ratio as of shall be no greater than 5.00 to 1.00 and greater than 4.50 to 1.00, (x) $120.0 million, so long as, on a Pro Forma Basis after giving effect to the last day payment of any Test Period being less such Restricted Payment, the Total Leverage Ratio shall be no greater than 5.0 4.50 to 1.01.00 and greater than 4.00 to 1.00, (y) the greater of (a) $120.0 million and (Bb) the Cumulative Growth Amount;
(i) 7.5% of Market Capitalization, so long as as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no Default greater than 4.00 to 1.00 and greater than 3.50 to 1.00 and (z) an unlimited amount, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall have occurred be no greater than 3.50 to 1.00; and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 2 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.70 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $29,000,000 in any calendar year (which shall increase to $36,250,000 subsequent to the consummation of the Parent IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $36,250,000 in any calendar year or $72,500,000 subsequent to the consummation of a the Parent IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed, and when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) $25,000,000, plus (y) so long as no Event of Default is continuing, the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph; provided that, if such payment is made from the proceeds of clause (b) of the definition of “Cumulative Credit,” the Fixed Charge Coverage Ratio calculated on a Pro Forma Basis is greater than or equal to 2.00 to 1.00;
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) split or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after the Parent IPO, (i) any Restricted Payment by Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) Holdings and its Restricted Subsidiaries from such Parent IPO plus (B) 2.5% per annum of the Cumulative Growth AmountTotal Market Capitalization of Parent and its Subsidiaries determined at the time of declaration of such Restricted Payment;
(im) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount [reserved];
(together with the aggregate amount of Investments made pursuant to Section 7.02(v)n) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized distributions in connection with the Transactionsmaking of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(jo) so long as the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary); provided that such Restricted Subsidiary owns no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the Borrower;
(k) if the Borrower shall become the Subsidiary primary assets of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromare cash and/or Cash Equivalents); and
(lp) Restricted Payments that are made (i) in an amount equal to the declaration amount of Excluded Contributions previously received and payment that Holdings elects to apply under this clause (p) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of dividends and distributions on property or assets acquired after the Equity Interests Closing Date, if the acquisition of any Receivables Management Subsidiary to holders of minority interests substantially consistent such property or assets was financed with past practice Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 2 contracts
Sources: Loan Agreement (Travelport LTD), Credit Agreement (Travelport LTD)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Original Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts respect of working capital adjustments or purchase price adjustments pursuant to be paid under, or contemplated by, the Transaction Agreement, (iii) in order to satisfy indemnity and other similar obligations under the fees Transaction Agreement and expenses related thereto owed to Affiliates, including any payment (iv) to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO)); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, directors, officers, members of management, or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Original Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise increased the Cumulative Credit;
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $80,000,000 and Holdings 3.00% of Total Assets, in each case, determined at the time such Restricted Payments are made plus (y) if (A) the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.70 to 1.00 and (B) the Secured Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00, the Cumulative Credit at such time; provided, that with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would result therefrom plus (z) if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00, $80,000,000, in each case, determined at the time the applicable Restricted Payment is made;
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 and Section 7.08 if such parent were subject to such sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gi) payments made or expected to be made by Holdings, the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount equal to 6% the net proceeds received by (together with the aggregate amount of Investments made pursuant to Section 7.02(v)or contributed to) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of from such Qualified Equity Interests of the BorrowerIPO;
(k) if Holdings, the Borrower shall become or any of the Subsidiary Restricted Subsidiaries may pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, so long as no Default shall have occurred and be continuing split or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions combination thereof or any Permitted Acquisition;
(the “l) Restricted Payments Interest Expense Election”) in respect the amount of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromany Excluded Contribution; and
(lm) one or more Restricted Payments that are made with the declaration and payment net cash proceeds of dividends and distributions the 2GIG Disposition; provided that the Total Leverage Ratio on a Pro Forma Basis shall be no more than 5.00 to 1.00 at the Equity Interests time of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent each such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (APX Group Holdings, Inc.), Credit Agreement (APX Group Holdings, Inc.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) additional Restricted Payments; provided (x) the Restricted Payment Conditions are satisfied and (y) Restricted Payments made in reliance on this Section 7.06(d) are not made from the proceeds of Revolving Credit Loans;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.02 (other than Section 7.08(fSections 7.02(e) and (m)), 7.04, 7.07 (other than Sections 7.07(e) and (j)) or 7.10;
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make retirement or other acquisition or retirement for value of Equity Interests of a corresponding Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower (or any direct or indirect parent thereof:
of the Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (iincluding any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings Borrower (or any direct or indirect parent thereof) attributable or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to Holdingsthis clause (g) shall not exceed $20,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $30,000,000 in any calendar year or $60,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Borrower net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries determined as if or any of its direct or indirect parent companies that occurs after the Borrower and its Subsidiaries filed separately;Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of which shall be used key man life insurance policies received by Holdings the Borrower or its Restricted Subsidiaries; less
(or iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(iii) (x) the greater of (i) $50,000,000 and (i) 30% of LTM Consolidated EBITDA, plus (y) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make Restricted Payments to any direct or indirect parent thereofof the Borrower:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and similar Taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) (A) to the extent such parent is the parent of a consolidated, combined, or similar foreign, federal, state or local or similar tax group of which the Borrower and/or its Subsidiaries are members, the proceeds of which will be used by such parent to pay the Tax liability for such tax group that includes the Borrower and/or its Subsidiaries that is attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that (i) such Tax liability shall not exceed the amount that the Borrower and/or its Subsidiaries would have been required to pay in respect of the relevant foreign, federal, state or local income or similar Taxes for such fiscal year had the Borrower and its Subsidiaries paid such Taxes separately from any such parent company as a standalone consolidated, combined, or similar foreign, federal, state or local income or similar tax group, less any amounts paid directly by the Borrower and its Subsidiaries with respect to such taxes and (ii) any payments attributable to the income of Unrestricted Subsidiaries shall be permitted only to the extent that cash payments were made for such purpose by the Unrestricted Subsidiaries to the Borrower or its Restricted Subsidiaries, or (B) with respect to any taxable year (or portion thereof) ending after the Closing Date for which the Borrower is treated as a pass through entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, the payment of dividends or distributions to any member or partner of the Borrower in an amount such that the members or partners (or their direct or indirect members or partners, if applicable) receive, in the aggregate for such period, payments or distributions not to exceed the product of (x) the taxable income of the Borrower for such taxable year or portion thereof and (y) the highest combined marginal U.S. federal, state, and local income tax rates (including any tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation, resident in New York, New York (for the avoidance of doubt, regardless of the actual rate applicable to any member or partner), determined (w) by taking into account (1) any U.S. federal, state, and/or local (as applicable) cumulative taxable losses of the Borrower for any prior taxable years ending after the Closing Date for which the Borrower was a pass through entity to the extent such losses are of a character that would allow such losses to be available to reduce income in the current taxable period (taking into account any limitations on the utilization of such loss to reduce such income and to the extent such loss had not already been utilized), (2) the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income and (3) any adjustment to the Borrower’s taxable income as a result of any tax examination, audit, or adjustment with respect to any period or portion thereof, (x) by not taking into account the application of Section 199A of the Code, (y) without duplication of any amounts paid directly by the Borrower and its Subsidiaries with respect to taxes of such members or partners and (z) by permitting payments attributable to the income of Unrestricted Subsidiaries only to the extent that cash payments were made for such purpose by the Unrestricted Subsidiaries to the Borrower or its Restricted Subsidiaries (any such Restricted Payment permitted under this clause (iii), a “Permitted Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionInvestment (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to pay customary salary, bonus and in each caseother benefits payable to directors, officers and employees of Holdings, the Borrower shall cause or any direct or indirect parent company of the requirements of Section 6.11 to be complied with, within the time periods specified therein (Borrower to the extent required by such salaries, bonuses, indemnity and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) of the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementsuch parent (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and the Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon or retirement for value in connection with the exercise or vesting of Equity Interests of the Borrower by or any other equity award with respect to any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant (or their respective Controlled Investment Affiliates and Immediate Family Members) and any repurchases of Equity Interests in consideration of such payments including in connection with the exercise or vesting of stock options, warrants or the issuance of restricted stock units or similar stock based awards;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Investment permitted under Section 7.02 and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of the Borrower or any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hl) after a Qualified IPO and so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 7.00% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 7.00% of Market Capitalization;
(m) [reserved];
(n) payments or distributions to dissenting stockholders pursuant to applicable law (including in taxes realized by the Borrower connection with, or as a result of, exercise of appraisal rights and the Restricted Subsidiaries in the form settlement of refunds any claims or deductions realized action (whether actual, contingent or potential)), pursuant to or in connection with the Transactionsa consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or Section 7.04;
(jo) so long as no Default shall have occurred and be continuing the distribution, by dividend or would result therefromotherwise, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets) or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower elects to apply under this clause (p) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the Borrower shall become acquisition of such property or assets was financed with Excluded Contributions, in each case, to the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund extent Not Otherwise Applied;
(q) the payment of interest and fees on Indebtedness any dividend or other distribution or the consummation of Holdings permitted by Section 7.16; provided, that any irrevocable redemption within 60 days after the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect date of declaration of the Indebtedness specified in such notice only so long dividend or other distribution or the giving of the redemption notice, as no Default shall the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have occurred and be continuing or would result therefromcomplied with the provisions of this Agreement; and
(lr) the declaration and payment of dividends and distributions on Borrower may pay, make or issue, as applicable, the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Dividend Recapitalization.
Appears in 2 contracts
Sources: Credit Agreement (Apria, Inc.), Credit Agreement (Apria, Inc.)
Restricted Payments. Declare or None of the Borrower nor any of the Restricted Subsidiaries shall make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.037.3) of such Person;
(c) any Restricted Payments in connection with the Transaction Payment; provided that (including any amounts to i) no Event of Default shall have occurred and be paid under, continuing or contemplated bywould result therefrom and (ii) after giving effect thereto, the Transaction Agreement) and the fees and expenses related thereto owed Borrower shall be in compliance, on a Pro Forma Basis, with a Net Total Leverage Ratio of equal to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoless than 4.25:1.00;
(d) Restricted Payments in an aggregate amount not to exceed the Available Amount Basket; provided that the Available Amount Conditions are satisfied;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.2 (other than Sections 7.2(e), (m), (n), (r), (x), (z), or (aa)), 7.4 or 7.7 (other than Sections 7.7(f) or 7.7(k)); including, for the avoidance of doubt, any distribution of cash to fund a Permitted Acquisition in accordance with Section 7.08(f7.2(i);
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings, the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $25,000,000 in any calendar year or $40,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Third Amendment Effective Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.6(g);
(h) so long as no Event of Default has occurred and is continuing on the date such Restricted Payment is made, Restricted Payments in an aggregate amount equal, when combined with prepayments of Indebtedness pursuant to Section 7.10(a)(iv), to the greater of (i) $50,000,000 and (ii) 25% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments);
(i) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes franchise, excise and similar Taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’’ (including PubCo LLC’s and PubCo Ultimate Parent’s)) corporate or legal existence;
(iii) with respect to any taxable period (or portion thereof) during which the Borrower is treated as a pass-through entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, an amount sufficient to permit the Borrower to make dividends or distributions to any direct or indirect member of the Borrower, on a pro rata basis, (i) such that each such member or partner receives an amount from such dividend or distribution sufficient to enable each such member or partner to pay its U.S. federal, state and/or local and non-U.S. income Taxes (as applicable) attributable to its direct or indirect ownership of the Borrower with respect to such taxable period (assuming that each such member or partner is subject to Tax at the highest combined marginal U.S. federal, state and/or local income Tax rate (including any Tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation resident in New York, New York plus (ii) any amounts owed by PubCo Ultimate Parent under the Tax Receivable Agreement; provided that in the case of clause (i), (1) the determination of such dividends or distributions (x) shall take into account (A) any U.S. federal, state and/or local (as applicable) loss carryforwards of such member or partner attributable to its direct or indirect ownership of the Borrower for any prior taxable period (or portion thereof) beginning after the date of this Agreement to the extent such loss is of a character that would allow such loss to be available to reduce taxes in the current taxable period (taking into account any limitations on the utilization of such loss by such member or partner to reduce such attributable taxes and assuming such loss had not already been utilized), (B) any adjustment to such member’s or partner’s taxable income attributable to its direct and indirect ownership of the Borrower and its subsidiaries as a result of any Tax examination, audit or adjustment with respect to any taxable period (or portion thereof), and (C) the character of the applicable income or losses (e.g., capital gains or losses, dividends, ordinary income, etc.), and (y) shall not take into account the effect of any deduction under Section 199A of the Code or any deductibility of state and local income tax purposes for U.S. federal income purposes; (2) in the case of PubCo Ultimate Parent and its direct or indirect wholly-owned subsidiaries, such amount shall not be less than an amount that will enable PubCo Ultimate Parent and such subsidiaries to timely satisfy all of their U.S. federal, state and local and non-U.S. tax obligations (including estimates thereof) and (3) any dividends or distributions with respect to a taxable period (or portion thereof) may be made in installments using reasonable estimates (any such Restricted Payment permitted under this clause (iii), a “Permitted Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.2 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1i) substantially all property acquired and/or substantially all property of the Person acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2ii) the merger (to the extent permitted in Section 7.047.4) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and Investment in each case, the Borrower shall cause accordance with the requirements of Section 6.11 5.11 (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to be complied withpay customary salary, within bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of the time periods specified therein (Borrower to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to 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) fractional Equity Interests in connection with any employee dividend, split or director combination thereof, any acquisition permitted under Section 7.2 or in connection with any equity issuance by PubCo Ultimate Parent or PubCo LLC and (ii) honor any conversion request by a holder of the Borrower or convertible Indebtedness and make cash payments in lieu of fractional Equity Interests in connection with any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause terms;
(fl) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to after the consummation of a Qualifying Qualified IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness a dividend within 30 days after the date of Holdings permitted by Section 7.16; provideddeclaration thereof, that if at the Borrower shall date of declaration the payment of such dividend would have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to complied with the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect provisions of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromthis Agreement; and
(lm) Restricted Payments that are made (i) with Excluded Contribution Assets or the declaration and payment proceeds thereof within thirty (30) days after the date such assets were designated as such or (ii) without duplication with clause (i) but so long as the Available Amount Conditions are satisfied, in an amount equal to the Net Proceeds from a Disposition of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Excluded Contribution Assets, in each case, to the extent such holder (or its affiliates) participates Not Otherwise Applied. For purposes of determining compliance with this Section 7.6, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (including as a) through (p) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a lender portion of such Restricted Payment in a manner that complies with this Section 7.6 and will only be required to include the amount and type of such Restricted Payment in one or financier under any financing provided to a Receivables Management Subsidiary)more of the above clauses.
Appears in 2 contracts
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Restricted Payments. Declare or None of the Borrower nor any of the Restricted Subsidiaries shall make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.037.3) of such Person;
(c) any Restricted Payments in connection with the Transaction Payment; provided that (including any amounts to i) no Event of Default shall have occurred and be paid under, continuing or contemplated bywould result therefrom and (ii) after giving effect thereto, the Transaction Agreement) and the fees and expenses related thereto owed Borrower shall be in compliance, on a Pro Forma Basis, with a Net Total Leverage Ratio of equal to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoless than 4.25:1.00;
(d) Restricted Payments in an aggregate amount not to exceed the Available Amount Basket; provided that the Available Amount Conditions are satisfied;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 7.2 (other than Sections 7.2(e), (m), (n), (r), (x), (z), or (aa)), 7.4 or 7.7 (other than Sections 7.7(f) or 7.7(k)); including, for the avoidance of doubt, any distribution of cash to fund a Permitted Acquisition in accordance with Section 7.08(f7.2(i);
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings, the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $25,000,000 in any calendar year or $40,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.6(g);
(h) so long as no Event of Default has occurred and is continuing on the date such Restricted Payment is made, Restricted Payments in an aggregate amount equal, when combined with prepayments of Indebtedness pursuant to Section 7.10(a)(iv), to the greater of (i) $50,000,000 and (ii) 25% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments);
(i) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes franchise, excise and similar Taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’’ (including PubCo LLC’s and PubCo Ultimate Parent’s)) corporate or legal existence;
(iii) with respect to any taxable period (or portion thereof) during which the Borrower is treated as a pass-through entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, an amount sufficient to permit the Borrower to make dividends or distributions to any direct or indirect member of the Borrower, on a pro rata basis, (i) such that each such member or partner receives an amount from such dividend or distribution sufficient to enable each such member or partner to pay its U.S. federal, state and/or local and non-U.S. income Taxes (as applicable) attributable to its direct or indirect ownership of the Borrower with respect to such taxable period (assuming that each such member or partner is subject to Tax at the highest combined marginal U.S. federal, state and/or local income Tax rate (including any Tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation resident in New York, New York plus (ii) any amounts owed by PubCo Ultimate Parent under the Tax Receivable Agreement; provided that in the case of clause (i), (1) the determination of such dividends or distributions (x) shall take into account (A) any U.S. federal, state and/or local (as applicable) loss carryforwards of such member or partner attributable to its direct or indirect ownership of the Borrower for any prior taxable period (or portion thereof) beginning after the date of this Agreement to the extent such loss is of a character that would allow such loss to be available to reduce taxes in the current taxable period (taking into account any limitations on the utilization of such loss by such member or partner to reduce such attributable taxes and assuming such loss had not already been utilized), (B) any adjustment to such member’s or partner’s taxable income attributable to its direct and indirect ownership of the Borrower and its subsidiaries as a result of any Tax examination, audit or adjustment with respect to any taxable period (or portion thereof), and (C) the character of the applicable income or losses (e.g., capital gains or losses, dividends, ordinary income, etc.), and (y) shall not take into account the effect of any deduction under Section 199A of the Code or any deductibility of state and local income tax purposes for U.S. federal income purposes; (2) in the case of PubCo Ultimate Parent and its direct or indirect wholly-owned subsidiaries, such amount shall not be less than an amount that will enable PubCo Ultimate Parent and such subsidiaries to timely satisfy all of their U.S. federal, state and local and non-U.S. tax obligations (including estimates thereof) and (3) any dividends or distributions with respect to a taxable period (or portion thereof) may be made in installments using reasonable estimates (any such Restricted Payment permitted under this clause (iii), a “Permitted Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.2 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1i) substantially all property acquired and/or substantially all property of the Person acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2ii) the merger (to the extent permitted in Section 7.047.4) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and Investment in each case, the Borrower shall cause accordance with the requirements of Section 6.11 5.11 (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to be complied withpay customary salary, within bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of the time periods specified therein (Borrower to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to 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) fractional Equity Interests in connection with any employee dividend, split or director combination thereof, any acquisition permitted under Section 7.2 or in connection with any equity issuance by PubCo Ultimate Parent or PubCo LLC and (ii) honor any conversion request by a holder of the Borrower or convertible Indebtedness and make cash payments in lieu of fractional Equity Interests in connection with any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause terms;
(fl) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to after the consummation of a Qualifying Qualified IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness a dividend within 30 days after the date of Holdings permitted by Section 7.16; provideddeclaration thereof, that if at the Borrower shall date of declaration the payment of such dividend would have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to complied with the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect provisions of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromthis Agreement; and
(lm) Restricted Payments that are made (i) with Excluded Contribution Assets or the declaration and payment proceeds thereof within thirty (30) days after the date such assets were designated as such or (ii) without duplication with clause (i) but so long as the Available Amount Conditions are satisfied, in an amount equal to the Net Proceeds from a Disposition of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Excluded Contribution Assets, in each case, to the extent such holder (or its affiliates) participates Not Otherwise Applied. For purposes of determining compliance with this Section 7.6, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (including as a) through (p) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a lender portion of such Restricted Payment in a manner that complies with this Section 7.6 and will only be required to include the amount and type of such Restricted Payment in one or financier under any financing provided to a Receivables Management Subsidiary)more of the above clauses.
Appears in 2 contracts
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptexcept :
(a) [reserved];
(i) each Restricted Subsidiary the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests in exchange for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent capital contributions or issuances of new Equity Interests, provided that any terms and provisions material to the Borrower and interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to other Restricted Subsidiaries and the Lenders as those contained in the Equity Interests redeemed thereby, (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Personthe Borrower and (iii) the Borrower may issue, transfer or sell directors’ qualifying shares and shares issued to foreign nationals as required under applicable Law;
(c) the Borrower may make additional Restricted Payments in connection with the Transaction so long as (including any amounts to be paid under, or contemplated by, the Transaction Agreementi) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to after giving effect to such Restricted Payment, the TransactionsTotal Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.40:1.00 and (ii) in connection with, no Event of Default exists or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoresults therefrom;
(d) to the extent constituting Restricted PaymentsPayments permitted by other clauses of this Section 7.06, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.04, Section 7.05 (other than Section 7.08(f7.05(e)), Section 6.19 (other than Section 6.19(j)) or Section 7.08;
(e) repurchases of Equity Interests in the ordinary course of business of the Borrower (or any Restricted Subsidiary Parent Entity) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split, distribution, merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition, (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and/or (iii) may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower and its Restricted Subsidiaries Subsidiaries;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed the Available Amount; provided that with respect to Restricted Payments made in reliance on the Growth Amount, and Holdings may no Event of Default would result therefrom;
(h) the Borrower may, in good faith, pay (or make a corresponding Restricted Payment Payments to allow any direct or indirect parent thereof to pay) for the prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants (or any Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any Parent Entity) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan, phantom equity plan, or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement and/or any employment, termination or severance agreement or equityholder agreement) with any employee, director, manager, officer or consultant of the Borrower (or any direct or indirect parent thereof), the Borrower or any Restricted Subsidiary; provided that such payments shall not exceed the greater of (x) $40,000,000 and (y) 5.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year (or, after a Qualifying IPO, the greater of (x) $90,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period), provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(h) in any calendar year (after giving effect to such carry forward) shall not exceed the greater of (x) $90,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period in any calendar year (or, after the Qualifying IPO, the greater of (x) $180,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period); provided further that, cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower, any Parent Entity or any of the Borrower’s Restricted Subsidiaries (or their respective Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes) in connection with a repurchase of Equity Interests of any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the capital of the Borrower (other than through the issuance of Disqualified Equity Interests), Equity Interests of any parent entity of the Borrower, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any other Parent Entity that occurred after the Closing Date, in each case to the extent not otherwise applied under this Agreement or constituting a Cure Amount; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the Closing Date (including from any Parent Entity to the extent contributed to the Borrower or a Restricted Subsidiary); less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this proviso; provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective controlled investment affiliates or Affiliates, estates, heirs, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees) of the Borrower or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Equity Interests of the Borrower or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;
(i) the Borrower may make additional Restricted Payments in an amount not to exceed (i) the greater of (x) $295,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period minus (ii) Investments made pursuant to Section 7.02(s)(iii) minus (ii) Restricted Prepayments made pursuant to Section 7.08(d)(ii);
(j) the Borrower may make Restricted Payments to any Parent Entity:
(i) the proceeds of which will be used to pay (A) the tax liability to each relevant jurisdiction in respect of consolidated, combined, affiliated, aggregate, unitary or affiliated returns for similar type of income or similar Tax liabilities of any such parent or (B) if the relevant jurisdiction Borrower is a pass-through entity, the income or similar Tax liabilities of Holdings (or any direct or indirect parent thereof) such owner, in each case, to the extent attributable to the income of Holdings, the Borrower or its Subsidiaries determined as if any of their respective Subsidiaries; provided that no such payments described in clause (A) shall exceed the greater of the Tax liability that would have been imposed on Holdings, the Borrower and its and/or the applicable Subsidiaries had such entities filed separatelyon a (x) stand-alone basis or (y) consolidated, combined, affiliated, aggregate or unitary basis, assuming that the only members of any relevant group are Holdings, the Borrower and/or the applicable Subsidiaries;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s organizational, operating costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax reporting matters) incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) [reserved], (y) fees and expenses (other than such owed to Affiliates) (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(j), ) which are in each case reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes (i) any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other fees, taxes fees and expenses (other than (x) Taxes measured by income and (y) withholding Taxes), required to maintain its be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its: (a) being organized or having Equity Interests outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Borrower or any of the Borrower’s Subsidiaries) or otherwise maintain its direct existence or indirect parents’good standing under applicable law, (b) corporate existencebeing a holding company parent, directly or indirectly, of the Borrower or any Subsidiaries of the Borrower, (c) receiving dividends from or other distributions in respect of the Equity Interests of, directly or indirectly, the Borrower or any Subsidiaries of the Borrower, or (d) having made any payment in respect to any of the items for which the Borrower is permitted to make payments to any Parent Entity pursuant to this Section 7.06;
(iv) if a Holdings Election Event which shall occurbe used to pay customary salary, bonus, severance, indemnity and other benefits payable to employees, directors, officers, managers, members, partners, independent contractors or consultants of the Borrower or any Parent Entity, including the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(v) to finance any Investment made by such direct or indirect parent that, if made by the Borrower, would be permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.13; provided that for the avoidance of doubt, any such contribution pursuant to be complied with, within the time periods specified therein clause (to the extent required by the Collateral and Guarantee Requirement); and1) above shall not increase any other basket hereunder;
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings to (or any direct or indirect parent thereofA) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement and (B) without duplication, to pay Public Company Costs; and/or
(vii) up to $2,500,000 per calendar year;
(gk) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(jl) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments in an amount necessary to make an “AHYDO” catch-up payment of the Indebtedness and/or Disqualified Equity Interests (including, for the avoidance of doubt, the Preferred Equity) of any Parent Entity;
(m) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with any Investment permitted by Section 7.02 or any consolidation, merger or transfer of assets permitted by Section 7.04;
(n) after a Qualifying IPO, Restricted Payments not to exceed the sum of (x) 6.0% per annum of the net proceeds of such Qualifying IPO received by (or contributed to) the issuance Borrower and its Restricted Subsidiaries from such Qualifying IPO and (y) an aggregate amount per annum not to exceed 5.0% of Qualified the Market Capitalization;
(o) the distribution, by dividend or otherwise, of Equity Interests of an Unrestricted Subsidiary or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary of an Unrestricted Subsidiary (other than any Unrestricted Subsidiaries, all or substantially all the assets which consist of cash and Cash Equivalents);
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lp) the declaration and payment of dividends and distributions other Restricted Payments on the Disqualified Equity Interests incurred in accordance with Section 7.03;
(q) [reserved];
(r) any Restricted Payment made in connection with a Permitted Tax Restructuring;
(s) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants and the vesting of restricted stock and restricted stock units; and
(t) distributions or payments of Securitization Fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Permitted Receivables Financing. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 7.06 will not prohibit the consummation of any Receivables Management Subsidiary to holders irrevocable redemption, purchase, defeasance, distribution or other payment within 60 days after the date of minority interests substantially consistent the giving of the irrevocable notice or declaration thereof if at the date of such notice or declaration, such payment would have complied with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided, that, any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) repurchases of Equity Interests in the ordinary course of business in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants or deemed to occur upon the issuance of such Equity Interests in connection with withholding obligations with respect thereto;
(f) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower (or any direct or indirect parent thereof) or any Subsidiary; provided, that, such payments do not to exceed, in the aggregate in any calendar year, $5,000,000; provided, that, 100% of any unused portion of the preceding basket for any calendar year may be carried forward to the immediately succeeding calendar year; provided, further, that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof an Equity Interest in the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelymake Permitted Tax Distributions;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in the Borrower to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g)), in each case, which are reasonable and customary and customary, incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors, managers or officers of any direct or indirect parent of the Borrower attributable to the direct or indirect ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or organizational existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that provided, that, (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger or amalgamation (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;Agreement or related to a Qualifying IPO; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureto the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of and its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant not to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by exceed $5,000,000 minus amounts reallocated from this clause (hj) to Sections 7.02(t) and 7.08(a)(iii), ;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the sum Available Amount; provided, that, at the time of any such Restricted Payment (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as no Event of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromtherefrom and (B) if such Restricted Payment is made in reliance on the Available Amount Builder Basket, the LQA Recurring Revenue Leverage Ratio of the Borrower may make additional as of the end of the most recently ended Test Period on a Pro Forma Basis, would be no greater than 0.75:1.00;
(I) after a Qualifying IPO, (i) any Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized Payment by the Borrower or any other direct or indirect parent of the Borrower the proceeds of which will be used to pay listing fees and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (jii) so long as no Default shall have or Event of Default has occurred and be continuing is continuing, Restricted Payments not to exceed up to 6.00% per annum of the Net Cash Proceeds received by (or would result therefrom, contributed to) the Borrower may make and its Restricted Subsidiaries from such Qualifying IPO and (II) Restricted Payments to redeem the Specified Stock solely with the proceeds of Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from a Qualifying IPO or other issuance of Qualified Equity Interests of the Borrower;
(k) if by the Borrower shall become the Subsidiary (or any of Holdings, so long as no Default shall have occurred and be continuing its direct or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16indirect parents); provided, that that, at the time of any such Restricted Payment the LQA Recurring Revenue Leverage Ratio of the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect as of the Indebtedness specified in such notice only so long as end of the most recently ended Test Period on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).greater than 1.00:1.00;
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Parent, and to other Restricted Subsidiaries and of Parent (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Parent and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Parent and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests of such Person (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to Parent and any other than Disqualified Restricted Subsidiary and to each other owner of Equity Interests not otherwise permitted by Section 7.03) of such PersonRestricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement, any Permitted Acquisition or other permitted Investments and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower Parent (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than 7.02(e) and 7.02(m)), Section 7.04 (other than 7.04(g)), 7.05 (other than 7.05(e)(iv) and 7.05(g)) or Section 7.08 (other than 7.08(f), 7.08(g), 7.08(h), and 7.08(m));
(e) repurchases of Equity Interests in the Borrower Parent or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower Parent and its each Restricted Subsidiaries Subsidiary may (i) pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Holdings Equity Interests of such Restricted Subsidiary (or of Parent or any other direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary or Parent (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) make Restricted Payments in the proceeds form of which shall be used by Holdings (distributions to allow Parent or any direct or indirect parent of Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary (or Parent or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or Parent or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to a parent of Parent made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this Section 7.06(f) shall not exceed $6,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $12,000,000 in any calendar year); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”;
(B) Excluded Contributions;
(C) the Net Proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; provided, further, that cancellation of Indebtedness owing to Parent from members of management of Parent, any of Parent’s direct or indirect parent companies or any of Parent’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of Parent or any of Parent’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) so long as no Event of Default has occurred and is continuing or would result therefrom (other than (i) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (a) of the definition thereof, in which case no Event of Default pursuant to Section 8.01(a) or (f) shall have occurred and be continuing or would result therefrom, or (ii) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (c)(i) of the definition thereof), Parent may make Restricted Payments in an aggregate amount not to exceed (x) $25,000,000 plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted Payment made pursuant to clause (y) above, solely to the extent such payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 5.00 to 1.00;
(h) Parent may make Restricted Payments to any direct or indirect parent of Parent:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Parent and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in Transaction Expenses and any fiscal year plus any reasonable fees and customary expenses of and indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Parent and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and or similar Taxes, other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate or limited liability company existence;
(iii) (A) for any taxable period in which Parent and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which Parent is the common parent (a “Tax Group”), to pay the portion of any federal, foreign, state and/or local income taxes of such Tax Group that are attributable to the taxable income of Parent and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Parent and its Subsidiaries would have been required to pay as a stand-alone consolidated, combined or similar income tax group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Parent or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; and (B) for any fiscal quarter in which Parent is treated as a partnership or disregarded entity owned by a partnership for federal income tax purposes, an amount for the immediately preceding fiscal quarter equal to the product of (x) the net taxable income of Parent, if positive, for such immediately preceding fiscal quarter, determined by disregarding any tax basis adjustments under Section 743(b) of the Code and (y) the sum of the maximum federal, state and local income tax rates (including pursuant to Section 1411 of the Code), reduced by any deduction or credit allowable for state and local taxes, and reflecting any reduced rate applicable to any special class of income that is in effect for such immediately preceding fiscal quarter for taxable corporations or individuals (whichever is higher) in any jurisdiction in the United States (any amount permitted to be paid under this Section 7.06(h)(iii), a “Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02Sections 7.02 and 7.08 if such parent were subject to such Sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Parent or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Parent or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionInvestment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 and (C) such contribution shall constitute an Investment by Parent or the applicable Restricted Subsidiaries, as the case may be, at the date of such contribution or merger, as applicable, in an amount equal to the amount of such Restricted Payment;
(v) the proceeds of which (A) shall be complied withused to pay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of any direct or indirect parent company of Parent to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of Parent and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08(e), (i), (j), (k), (l), (m) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementParent or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used to make Restricted Payments to allow any direct or indirect parent of Parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings Parent (or any direct or indirect parent thereof) that is directly attributable to the operations of Parent and its Restricted Subsidiaries;
(i) payments made or expected to be made by Parent, Borrower or any of the Restricted Subsidiaries (or Restricted Payments to allow any direct or indirect parent thereof to make payments) in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases, in each case, in connection with the exercise of stock options;
(j) (i) any Restricted Payment by Parent or any other direct or indirect parent of Parent to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) additional Restricted Payments in an aggregate amount per annum not to exceed $10,750,000;
(k) Parent or any of the Restricted Subsidiaries may pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses cash in lieu of fractional Equity Interests in connection with (other than to Affiliatesx) related to any unsuccessful equity dividend, split or debt offering permitted by this Agreementcombination thereof or (y) any Permitted Acquisition;
(gl) Restricted Payments in the Borrower may pay for the amount of any Excluded Contribution;
(m) any purchase, repurchase, retirement redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Borrower (“Treasury Capital Stock”) or Junior Financing made by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement exchange (including any stock subscription such exchange pursuant to the exercise of a conversion right or shareholder agreement) privilege in connection with any employee or director which cash is paid in lieu of the Borrower issuance of fractional shares) for, or any out of its Subsidiariesthe proceeds of the substantially concurrent sale of, Equity Interests of Parent (other than Disqualified Equity Interests) (“Refunding Capital Stock”) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Equity Interests or through an Excluded Contribution) of Parent; provided, however, that to the aggregate amount extent so applied, the Net Proceeds, or fair market value of payments made pursuant to this property or assets or of marketable securities, from such sale of Equity Interests or such contribution will be excluded from clause (fc) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)Cumulative Amount;
(hn) any Restricted Payments made on the date of consummation of the GEE Acquisition in connection with the Amendment Transactions to fund the redemption of the EMC Parent Preferred Units;
(o) the payment of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of declaration such Restricted Payment would have complied with the provisions of this Agreement; and
(p) so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower Parent or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with unlimited amount so long as the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day end of any the most recent Test Period being less is no greater than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)3.00:1.00.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Global Eagle Entertainment Inc.), Second Lien Credit Agreement (Global Eagle Entertainment Inc.)
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company, and to other Restricted Subsidiaries and of the Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.00:1.00;
(e) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, director, member, partner, independent contractor or consultant stock option plan or benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $37,500,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company or any Subsidiary Guarantor, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors, members, partners, independent contractors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of Equity Interests of the Company or any of its direct or indirect parent companies pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) through (iii) of this Section 7.06(g);
(h) the Company may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i), when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (a) $200,000,000 and Holdings (b) 3.50% of Total Assets plus (ii) the Cumulative Credit on such date; provided that, in the case of clause (ii), with respect to usage of any portion of the Builder Basket, no Event of Default under Sections 8.01(a) or (f) has occurred and is continuing (or would result therefrom);
(i) the Company may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay the its operating or organizational costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Company and its Restricted Subsidiaries, any costs, expenses and liabilities incurred in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Company and its SubsidiariesRestricted Subsidiaries and listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.11, within (C) such parent company and its Affiliates (other than the time periods specified therein (Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent required the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall be deemed to be made by the Collateral and Guarantee RequirementCompany or such Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p); and);
(v) if a the proceeds of which shall be used to pay customary salary, bonus, severance, indemnity and other benefits payable to future, present or former officers, employees, managers, members, partners independent contractors or consultants of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement by Holdings (or any direct or indirect parent thereof), whether or not successful, that is directly attributable to the operations of the Company and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for Company or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon exercise or retirement for value vesting of Equity Interests of the Borrower by any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant of the Borrower Company or any Restricted Subsidiaries and any repurchases of its Subsidiaries pursuant Equity Interests deemed to any employee occur upon the exercise or director equity planvesting of stock options, employee warrants or director the issuance of restricted stock option plan units or any other employee or director benefit plan or any agreement (including any similar stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)based awards;
(hk) so long as no Default shall have occurred and be continuing the Company or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptionsdistribution, purchasessplit, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day of any Test Period being less net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than 5.0 to 1.0a public sale constituting an Excluded Contribution) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 6.0% of Market Capitalization;
(m) distributions or payments of Securitization Fees, sales, contributions, distributions and other transfers of Securitization Assets and purchases of Securitization Assets, in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized each case in connection with the Transactionsa Qualified Securitization Financing;
(jn) so long payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as no Default shall have occurred a result of, exercise of appraisal rights and be continuing the settlement of any claims or would result therefromaction (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02;
(o) the Borrower may make Restricted Payments with the proceeds distribution, by dividend or otherwise, of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the BorrowerCompany or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, Restricted Payments that the Borrower shall have elected to include such amounts are made (i) in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that amount of Excluded Contributions previously received since the Borrower will make such dividends and distributions Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business (including as event that a lender Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Company may, in its sole discretion, classify or financier under later divide, classify or reclassify all or a portion of such Restricted Payment or any financing provided portion thereof in a manner that complies with this Section 7.06 and will only be required to a Receivables Management Subsidiary)include the amount and type of such Restricted Payment in one or more of the above clauses.
Appears in 2 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (Transactions, including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoassociated therewith;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(ei) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantswarrants and (ii) issuances of Equity Interests upon the exercise or conversion of the Warrants in accordance with the Warrant Agreement;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of its Equity Interests of the Borrower held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed $7,750,000 in the aggregate in any calendar year, provided that any unused portion of its Subsidiaries; providedthe preceding basket for any calendar year may be carried forward to succeeding calendar years, however, that so long as the aggregate amount of payments all Restricted Payments made pursuant to this clause (fSection 7.06(f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which after giving effect to such carry forward) shall increase to not exceed $40,000,000 subsequent to 15,500,000 in the consummation of a Qualifying IPO)aggregate;
(g) [reserved];
(h) so long as the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the greater of (x) $68,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; provided that, at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, ;
(k) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountamount not to exceed, together with the aggregate amount of without duplication, (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and the Available Amount and/or (ii) loans and advances made pursuant to Section 7.02(mthe Excluded Contribution Amount; provided that (x) at the time of any such Restricted Payment in lieu of Restricted Payments permitted by this reliance on clause (h), not to exceed the sum of (Ab) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day definition of “Available Amount,” no Event of Default shall have occurred and be continuing or would result therefrom and (y) at the time of any Test Period being less than 5.0 to 1.0) and (B) such Restricted Payment in reliance on the Cumulative Growth definition of “Excluded Contribution Amount;
(i) so long as ,” no Specified Event of Default shall have occurred and be continuing or would result therefrom;
(l) [reserved];
(m) the distribution, by dividend or otherwise, of Equity Interests or Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so long as the primary assets of such Unrestricted Subsidiary are not cash or cash equivalents;
(n) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount Payments; provided that, at the time of such Restricted Payment, (together with the aggregate amount of Investments made pursuant to Section 7.02(v)i) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have or Event of Default has occurred and be is continuing or would result therefrom, therefrom and (ii) the Total Leverage Ratio of the Borrower may make Restricted Payments with the proceeds as of the issuance of Qualified Equity Interests end of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdingsmost recently ended Test Period, so long as on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromgreater than 2.50:1.00; and
(lo) the declaration and payment of dividends and distributions Borrower or any Restricted Subsidiary may pay any dividend or distribution on the any Disqualified Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent incurred in accordance with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Section 7.03.
Appears in 2 contracts
Sources: Credit Agreement (Holley Inc.), Credit Agreement (Holley Inc.)
Restricted Payments. Declare The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to or any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) any member of the Borrower and each Restricted Subsidiary Group may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) Restricted Payments made on the Closing Date to consummate the Transactions;
(e) to the extent constituting Restricted Payments, the Borrower and members of the Restricted Subsidiaries Group may enter into and consummate transactions (i) make any Investment expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e)(v) and 7.02(m)), (ii) transfer assets in respect of the elimination of Equity Interests resulting from the consummation of a merger, dissolution, liquidation or consolidation in accordance with Section 7.04 or 7.08 other than (iii) make transactions permitted by Section 7.08(f7.08(e) or 7.08(j);
(ef) repurchases of Equity Interests in any member of the Borrower or any Restricted Subsidiary Group deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrants;
(fg) any member of the Restricted Group may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any present or former employee, officer, director or consultant thereof or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent thereof to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director or consultant in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) and all loans and advances made pursuant to Section 7.02(m) made in lieu of any such permitted Restricted Payment shall not exceed $30,000,000 in any fiscal year; provided, further, that that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from future, present or former employees, directors, managers or consultants of the Borrower, or any direct or indirect parent of the Borrower or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant, in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Agreement;
(h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings (or may make a corresponding distributions, loans or advances to any direct or indirect parent entity) in an aggregate amount not to exceed the Cumulative Credit immediately prior to the time of the making of such Restricted Payment; provided that, with respect to any Restricted Payment made pursuant to this Section 7.06(h), no Event of Default shall have occurred and be continuing or would result therefrom;
(i) the Borrower may make Restricted Payments (or may make distributions, loans or advances to any direct or indirect parent thereof:) (without duplication):
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofA) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Restricted Subsidiaries and (B) Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) thereof to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or other organizational existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries are a member of a consolidated or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were the only members of a consolidated or similar income tax group of which the Borrower is the common parent (it being understood and agreed that if the Borrower or any Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated or similar taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) reasonable and customary fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) not prohibited by this Agreement that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to make payments permitted under Sections 7.08(e), 7.08(h), and 7.08(j) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);
(j) payments made or expected to be made by any member of the Restricted Group in respect of withholding or other payroll and other similar Taxes payable by any present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the vesting or settlement of other equity-based awards;
(i) any Restricted Payment by the Borrower or any other direct or indirect parent entity of the Borrower to pay listing fees and other costs and expenses directly attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments in an amount not to exceed 6.0% of the aggregate proceeds of the Initial Public Offering in any fiscal year.
(l) Holdings and the Borrower may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of any member of the Restricted Group; provided, however, that any such cash payment shall not be for the purpose of evading the limitations of this Agreement;
(gm) other Restricted Payments provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to the making of such Restricted Payment, the Total Leverage Ratio calculated on a Pro Forma Basis shall not be greater than 5.00:1.00 as of the last day of the most-recently ended Test Period (it being understood that, as a condition precedent to the making of such Restricted Payment, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance);
(n) the Borrower may pay for the repurchasepurchase, retirement redemption or other acquisition or retirement for value of Equity Interests of the Borrower a Qualified Restricted Subsidiary owned by any futurea Strategic Investor if such purchase, present redemption or former employee other acquisition or director retirement for value is made for consideration not in excess of the Borrower or any fair market value of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)such Equity Interests;
(ho) so long as no Default shall have occurred dividends and be continuing or would result therefrom, distributions to the Borrower may extent necessary to enable Parent to make payments pursuant to the Tax Receivable Agreement; and
(p) additional Restricted Payments in an aggregate amount, amount under this clause (p) (together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings Restricted Debt Payments made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v7.13(a)(v)) not to exceed any reduction in taxes realized by the Borrower greater of (a) $100,000,000 million and (b) 32.50% of Consolidated EBITDA for the Restricted Subsidiaries in most recently ended Test Period (calculated on a Pro Forma Basis) at the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time made.
Appears in 2 contracts
Sources: Credit Agreement (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Restricted Payments. Declare Neither the Borrower shall, nor shall the Borrower permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdingsallow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, and Holdings may make a corresponding retirement or other acquisition or retirement for value of Equity Interests of such Restricted Payment to Subsidiary (or of the Borrower or any other such direct or indirect parent thereof:
) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (ior the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the proceeds death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which will be used shall increase to pay $25,000,000 subsequent to the tax liability to each relevant jurisdiction in respect consummation of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdings, succeeding calendar years subject to a maximum (without giving effect to the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
following proviso) of $25,000,000 in any calendar year (ii) the proceeds of which shall be used by increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings (or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);
(g) the Borrower may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted Payment had been made on the last day of such four quarter period, is less than or equal to 3.75:1.00 and (ii) no Default has occurred and is continuing; provided that any election made pursuant to this clause (g) shall be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(h) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gi) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant per annum equal to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 25,000,000 plus (such amount B) an amount, if any, equal to be increased to $100,000,000 upon (w) if the Total Leverage Ratio as of on a Pro Forma Basis after giving effect to the last day payment of any Test Period being less such Restricted Payment, is no greater than 5.0 3.50 to 1.01.00, an unlimited amount, (x) if the Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 4.00 to 1.00 and greater than 3.50 to 1.00, the greater of (a) $95,000,000 and (Bb) 7.50% of Market Capitalization, (y) if the Cumulative Growth Amount;Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 4.50 to 1.00 and greater than 4.00 to 1.00, $95,000,000 and (z) if the Total Leverage Ratio on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, is no greater than 5.00 to 1.00 and greater than 4.50 to 1.00, $65,000,000; and
(ik) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Amendment No. 3 Distribution.
Appears in 2 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to any other Restricted Subsidiaries and Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and (i) any other Restricted Subsidiary Company and to (ii) each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower and each any Restricted Subsidiary Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, FNIS may make Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoPayments;
(d) to the extent constituting Restricted Payments, the Borrower FNIS and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f)7.5 and 7.8;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;; and
(f) the Borrower and its Restricted Subsidiaries FNIS may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of cash payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized issuing fractional shares in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing exercise of warrants, options or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified other securities convertible into or exchangeable for Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred FNIS and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Companies.
Appears in 2 contracts
Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Metavante Technologies, Inc.)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments Payment made pursuant to or in connection with the Transaction (including any amounts to be paid under, or contemplated byTransactions and/or in connection with the Tax Matters Agreement, the Transaction Transition Services Agreement) and , any employee matters agreement contemplated by the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of Bankruptcy Plan or other agreement contemplated by the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoBankruptcy Plan;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.75 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $40,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $80,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i) the greater of $300,000,000 and 3.5% of Total Assets for the Test Period then most recently ended on or prior to the date of such Restricted Payment, and plus (ii) the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph; provided that, solely in the case of any Restricted Payments made in reliance on clause (b) of the definition of the “Cumulative Credit”, no Event of Default under Sections 8.01(a) or (f) has occurred or is continuing, in the case of any Restricted Payments made in reliance of clause (b) of the definition thereof) minus (iv) amounts applied to the prepayment of Junior Financing pursuant to Section 7.13(a)(iv)(1);
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) split or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) any Restricted Payments permitted Payment by this clause Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary;
(h), not m) any Restricted Payment made in connection with paying dividends with respect to exceed the sum declaration and payment by iHeart Operations of cash interest with respect to the iHeart Operations Preferred Stock in an amount up to the greater of (Ax) $75,000,000 and (such amount to be increased to $100,000,000 upon the y) 7.5% of Total Leverage Ratio Assets as of the last day of any the then most recently ended Test Period being less than 5.0 to 1.0of liquidation preference and any accrued unpaid interest or premium thereon or any securities issued as a replacement therefor so long as the terms of such securities do not exceed the greater of (x) $75,000,000 and (By) 7.5% of Total Assets as of the Cumulative Growth Amountlast day of the then most recently ended Test Period in liquidation preference, amount, stated value or principal amount, and are not materially adverse to the Lenders, in their capacity as such, taken as whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower);
(in) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional any Restricted Payments in an amount (together with the aggregate amount of Investments Payment made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends or distributions to any holder of the iHeart Operations Preferred Stock paying for the repayment, repurchase, redemption, defeasance, or otherwise acquire or retire for value of all or any portion of the iHeart Operations Preferred Stock in an amount up to the greater of (x) $75,000,000 and (y) 7.5% of Total Assets as of the last day of the then most recently ended Test Period of liquidation preference or any securities issued as a replacement therefor so long as the terms of such securities do not exceed the greater of (x) $75,000,000 and (y) 7.5% of Total Assets as of the last day of the then most recently ended Test Period in liquidation preference, amount, stated value or principal amount, and are not materially adverse to the Lenders, in their capacity as such, taken as a whole, as compared to the terms of the iHeart Operations Preferred Stock that is being replaced (as determined in good faith by the Borrower), together with accrued and unpaid interest or premium thereon to the redemption date thereof, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) related thereto;
(o) distributions in connection with the making of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(p) the distribution, by dividend or otherwise, of Equity Interests of any Receivables Management an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to holders Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of minority interests substantially consistent one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents); and
(q) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received and that Holdings elects to apply under this clause (q) or (ii) without duplication with past practice clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 2 contracts
Sources: Credit Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptother than the declaration or making of the following:
(a1) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other or any Restricted Subsidiaries and Subsidiary (ii) each or, in the case of any non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and Borrower, any other Restricted Subsidiary and to each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary based on Subsidiary) according to their relative ownership interests of the relevant class of Equity Interestsinterests);
(b2) the Borrower declaration and each making of any Restricted Subsidiary may declare and make dividend payments or other distributions Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Stock) of such Personthe Borrower;
(c3) Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;
(4) to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));
(5) repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the Transaction exercise of stock options or the vesting of any equity awards;
(6) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription, shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be paid under, increased by,
(a) the amount of net proceeds of any key man life insurance policies received by the Borrower or contemplated byany Restricted Subsidiary after the Closing Date;
(b) to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the Transaction Agreement) and proceeds from the fees and expenses related thereto owed to Affiliates, including any payment to holders sale of Equity Interests of the Borrower or any direct or indirect parent thereof (immediately prior other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to giving effect any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and
(c) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;
(7) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the TransactionsEquivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;
(8) Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):
(a) distributions made pursuant to Section 4.01(b) of the LLC Agreement;
(b) operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(c) franchise taxes and other fees, taxes and expenses in connection with, with (i) the ownership of the Borrower or as a result of, their exercise any Restricted Subsidiary or (ii) the maintenance of appraisal rights and the settlement of Borrower’s or any claims such parent entity’s corporate or actions (whether actual, contingent or potential) with respect theretolegal existence;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of Section 7.04 or 7.08 other than Section 7.08(f)such Restricted Payment;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02Permitted Investment; provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings shallthe Borrower will, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) or (2B) the merger (to the extent permitted in Section 7.046.05) of the Person formed or acquired with or into the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) in order to consummate such Investment;
(f) costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted AcquisitionInvestment, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)whether or not consummated; and
(vg) if a Holdings Election Event shall occur(i) customary salary, the proceeds of which shall be used by Holdings bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);
(9) Restricted Payments to pay (or permit any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof entity to pay) fees and expenses cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;
(10) [Reserved];
(11) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to Affiliatesa Restricted Subsidiary of the Borrower) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of its Subsidiaries pursuant common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;
(12) Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;
(13) Restricted Payments of Investments in one or more Unrestricted Subsidiaries;
(14) Restricted Payments (the proceeds of which may be utilized by any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement Parent Entity) in an aggregate amount not to exceed the sum of:
(including any stock subscription or shareholder agreementa) when taken together with any employee prepayments, repayments, redemptions, purchases, defeasances or director satisfactions made under clause (1)(f)(i) of Section 6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the Borrower or any amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of its Subsidiariesthe applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided, howeverin each case, that the aggregate amount no Event of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which Default shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);have occurred and be continuing; and
(hb) so long as the Available Amount at such time; provided that (i) no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (ii) loans and advances made pursuant solely with respect to Section 7.02(m) in lieu of Restricted Payments permitted by this amounts attributable to clause (h)2) of the definition of the Available Amount, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Net Leverage Ratio as of the last day of any Test Period being (after giving Pro Forma Effect to such Restricted Payment) would be less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Closing Date Total Net Leverage Ratio;
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.), Term Loan Credit Agreement (Impax Laboratories, LLC)
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) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition, contingent or potential) with respect theretoto 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 no Event of Default under Section 8.01(a) or, solely with respect to the Borrower, 8.01(f) has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.75 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 6.20 (other than Section 7.08(fSections 6.20(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, 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 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 the greater of $30,000,000 and 40.0% of LTM Consolidated EBITDA in any calendar year (which shall increase to the greater of $45,000,000 and 60.0% of LTM Consolidated EBITDA subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of the greater of $60,000,000 and 80.0% of LTM Consolidated EBITDA in any calendar year or the greater of $70,000,000 and 100.0% of LTM Consolidated EBITDA subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, officers, members of management, managers, partners, independent contractors, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(v), (x) the greater of (i) $35,000,000 and Holdings (ii) 40.0% of LTM Consolidated EBITDA, plus (y) subject to, solely in the case of the portion of the Cumulative Credit attributable to clause (b) thereof, no Event of Default under Sections 8.01(a) or (f) with respect to the Borrower having occurred and continuing or resulting therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the its organizational, operating costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings, the Borrower and the Restricted Subsidiaries, any costs, expenses and liabilities incurred by the Borrower in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings, the Borrower and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of Holdings, the Borrower and its the Restricted Subsidiaries, and following a Qualified IPO, listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) (A) with respect to any taxable period for which Borrower is a corporation for U.S. federal income tax purposes that is a member of a group of entities filing a consolidated, combined, unitary or similar tax return (or is a disregarded entity that is directly or indirectly owned by such a corporation), in the form of customary permitted tax distributions to the parent of such group to pay consolidated or similar tax liabilities and (B) with respect to any taxable period for which Borrower is a disregarded entity or a partnership for U.S. federal income tax purposes, in the form of permitted tax distributions to each owner of Borrower which shall be equal to the product of (X) such owner’s allocable share of the taxable income of Borrower for such taxable period (determined, for any taxable period for which Borrower is a disregarded entity, as if Borrower were a partnership), reduced (without duplication) by such owner’s allocable share of any taxable loss of Borrower for any prior taxable period ending after the Closing Date to the extent such taxable loss is of a character that would permit such loss to be deducted against the taxable income in the current taxable period and (Y) the highest combined marginal federal, state and local income tax rate applicable to a resident in New York City, New York (individual or corporation, whichever is higher) 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);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 if such parent were subject to such Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event the proceeds of which shall occurbe 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 Borrower or any direct or indirect parent company of the Borrower to the extent such salaries, bonuses, indemnity and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement (whether or not successful); provided that any such transaction was in the good faith judgment of the Borrower intended to be for the benefit of the Borrower and its Restricted Subsidiaries; and
(vii) the proceeds of which shall be used by Holdings or the Borrower to pay (or to make Restricted Payments to allow any 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 Borrower to the Lenders when taken as a whole, as compared to the Support and Services Agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Holdings or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon or retirement for value in connection with the exercise or vesting of Equity Interests of the Borrower by or any other equity award with respect to any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant (or their respective Controlled Investment Affiliates and Immediate Family Members) and any repurchases of Equity Interests in consideration of such payments including in connection with the exercise or vesting of stock options, warrants or the issuance of restricted stock units or similar stock based awards;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, distribution, split, merger, consolidation, amalgamation or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of the Borrower or any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)terms;
(hl) after a Qualified IPO and so long as no Event of Default shall have under Section 8.01(a) or, solely with respect to the Borrower, 8.01(f) has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 7% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 7% of Market Capitalization;
(m) distributions or payments of Securitization Fees;
(n) payments or distributions to dissenting stockholders pursuant to applicable law (including in taxes realized by the Borrower connection with, or as a result of, exercise of appraisal rights and the Restricted Subsidiaries in the form settlement of refunds any claims or deductions realized action (whether actual, contingent or potential)), pursuant to or in connection with the Transactionsa consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or Section 7.04;
(jo) so long as no Default shall have occurred and be continuing the distribution, by dividend or would result therefromotherwise, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets) or Indebtedness owed to the BorrowerBorrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower shall become the Subsidiary of Holdingselects to apply under this clause (p) or (ii) without duplication with clause (i), so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in such notice only so long as no Default shall have occurred and be continuing or would result therefromeach case, to the extent Not Otherwise Applied; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower 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 holders include the amount and type of minority interests substantially consistent with past practice 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 extent making of such holder portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as 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 its affiliates) participates more of the other clauses of this Section 7.06 and if any such test would be satisfied in any subsequent fiscal quarter following the Receivables Management Business (including as a lender or financier under any financing provided relevant date of determination, then such reclassification shall be deemed to a Receivables Management Subsidiary)have automatically occurred at such time.
Appears in 2 contracts
Sources: Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Borrowers and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Borrowers may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrowers and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Borrowers and the their Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Borrowers (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower Borrowers or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrowers (or any direct or indirect parent of the Borrowers) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Holdings (or any direct or indirect parent thereof), the Borrowers or any Subsidiary; provided that such payments do not to exceed $5,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $10,000,000; provided further that cancellation of Indebtedness owing to the Borrowers (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrowers, any of the Borrowers’ direct or indirect parent companies or any of the Borrowers’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrowers’ direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrowers and its their Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrowers:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Borrowers or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Borrowers and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Borrowers or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors, managers and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrowers and their Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of the Borrowers attributable to the direct or indirect ownership or operations of the Borrower Borrowers and its their Subsidiaries) and fees and expenses otherwise due and payable by the Borrowers or any Restricted Subsidiary and permitted to be paid by the Borrowers or such Restricted Subsidiary under this Agreement not to exceed $5,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrowers or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower Borrowers or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;; and
(gvi) the Borrower may proceeds of which shall be used to pay for the repurchasecustomary salary, retirement bonus and other benefits payable to officers and employees of any direct or other acquisition indirect parent company or retirement for value of Equity Interests partner of the Borrower by any futureBorrowers to the extent such salaries, present bonuses and other benefits are attributable to the ownership or former employee or director operation of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Borrowers and their Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) the Borrowers or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Borrowers or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) [Reserved];
(k) the Borrowers or any Restricted Subsidiary may make additional Restricted Payments; provided that the Payment Conditions shall have been satisfied with respect thereto;
(l) so long as no Event of Default shall have occurred and be continuing or would result therefrom, in addition to the Borrower foregoing Restricted Payments, Holdings, the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments to their respective direct and indirect shareholders in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom25,000,000; and
(lm) the declaration and payment by the Borrowers of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Borrowers following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Borrowers in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 2 contracts
Sources: Abl Credit Agreement (Cole Haan, Inc.), Abl Credit Agreement (Cole Haan, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any No Obligor shall make a Restricted Payment, except:
(a) except (i) each Restricted Subsidiary any Obligor may make a Restricted Payments Payment to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or Event of Default would result therefromexist before or after giving effect thereto, the Borrower may make additional Restricted Payments in an aggregate amount, together shall be permitted with the aggregate amount of respect to: (i) prepaymentscash dividends equal to 6% per annum of the liquidation preference for the Series C Preferred Stock in accordance with the terms thereof on the date hereof, redemptions(ii) any cash dividends payable on the Borrower's Series D Preferred Stock in accordance with the terms thereof as in effect on the date hereof, purchases(iii) any cash dividends payable on the Borrowers' Series E Preferred Stock in accordance with the terms thereof described in the Prospectus Supplement, defeasances and other payments in respect (iv) redemptions of Junior Financings made the Series C Preferred Stock pursuant to Section 7.13(a)(ivthe exercise of the put rights maintained by the holder of such shares in accordance with the terms of the Dallas Acquisition, (v) scheduled redemptions of the Borrower's Series B Preferred Stock in accordance with the terms thereof as in effect on the date hereof, (vi) the redemption of the MMR Warrants in an amount not to exceed $250,000, (vii) any redemption of up to a 4% minority interest held in ABS, (viii) the repurchase of up to $150,000 of MMR stock options held by ▇▇▇▇▇ ▇▇▇▇▇▇ and (ix) up to $25,000,000 in repurchases of the Borrower's stock or warrants, other than any stock specified in clauses (iv) and (iiv) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon above provided that the Total Leverage Ratio as of the last day of any Test Period being is less than 5.0 or equal to 1.0) 4.5 to 1.0 before and (B) the Cumulative Growth Amount;after giving effect thereto.
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to 2. The Credit Agreement is hereby amended by deleting Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts 6.13 therein in its Consolidated Interest Expense by delivering an irrevocable written notice to entirety and inserting in lieu thereof the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).following:
Appears in 2 contracts
Sources: Credit Agreement (SFX Broadcasting Inc), Credit Agreement (SFX Broadcasting Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Parent Borrower) or 7.08 (other than Section 7.08(f7.08(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Parent Borrower (or of any direct or indirect parent of the Parent Borrower) in connection with any such repurchase, retirement or other acquisition or retirement);
(g) the Parent Borrower may make Restricted Payments to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries;
(ii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) its operating costs and expenses incurred in the ordinary course of business and other overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) legal existence;
(iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) or (2) the merger or amalgamation (to the extent not prohibited by Section 7.04) of the Person formed or acquired into the Parent Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) in order to consummate such Permitted Acquisition, in each case, in accordance with the applicable requirements of Section 6.11;
(v) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any equity or debt offering not prohibited by this Agreement (whether or not successful) and directly attributable to the operation of the Parent Borrower and its Restricted Subsidiaries; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries, only to the extent such amounts are deducted, for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, in calculating Consolidated EBITDA for any period;
(h) the Parent Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause Restricted Subsidiaries may (fa) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) pay cash in lieu of Restricted Payments permitted by this clause (h)fractional Equity Interests in connection with any dividend, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of split or combination thereof or any Test Period being less than 5.0 to 1.0) Permitted Acquisition and (Bb) the Cumulative Growth Amounthonor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(i) so long as the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactionswas continuing;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) payments made or expected to be made by the Parent Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, officer, manager or consultant (or any Controlled Investment Affiliate or Immediate Family Member) and any repurchases of Equity Interests in consideration of any Receivables Management Subsidiary to holders such payments including deemed repurchases in connection with the exercise of minority interests substantially consistent with past practice stock options;
(l) in addition to the extent such holder foregoing Restricted Payments and so long as the Payment Conditions have been satisfied, the Parent Borrower may make additional Restricted Payments; and
(or its affiliatesm) participates in the Receivables Management Business (including as a lender or financier under any financing provided other Restricted Payments not to a Receivables Management Subsidiary)exceed $5.0 million.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptother than the declaration or making of the following:
(a1) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other or any Restricted Subsidiaries and Subsidiary (ii) each or, in the case of any non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and Borrower, any other Restricted Subsidiary and to each other owner of Equity Interests of such non-Wholly Owned Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary based on Subsidiary) according to their relative ownership interests of the relevant class of Equity Interestsinterests);
(b2) the Borrower declaration and each making of any Restricted Subsidiary may declare and make dividend payments or other distributions Payments payable solely in the form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Stock) of such Personthe Borrower;
(c3) Restricted Payments to consummate the Transactions (including payments in respect of dissenting shares, which, for the avoidance of doubt, may be made after the Closing Date), to pay any amounts pursuant to the Acquisition Agreement or the Specified Tender Offer;
(4) to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 6.05 (other than a merger or consolidation involving the Borrower) or transactions permitted under Section 6.08 (other than Section 6.08(9));
(5) repurchases of Equity Interests (a) deemed to occur upon exercise of options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the Transaction exercise of stock options or the vesting of any equity awards;
(6) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities) (or to allow any direct or indirect parent entity to purchase, retire, redeem or otherwise acquire Equity Interests (including related stock appreciation rights or similar securities)) held directly or indirectly by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any Parent Entity upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any management, employee or director equity plan, management, employee or director stock option or profits interest plan or any other management, employee or director benefit plan or other agreement or arrangement (including any separation, stock subscription, shareholder, partnership or similar agreement) in an aggregate amount after the Closing Date, together with the aggregate amount of loans and advances to any Parent Entity made pursuant to Section 6.04(23) in lieu of Restricted Payments permitted by this clause (6), not to exceed $25 million in any fiscal year with any unused amounts in any fiscal year being carried over to succeeding fiscal years; provided that such amount in any fiscal year may be paid under, increased by,
(a) the amount of net proceeds of any key man life insurance policies received by the Borrower or contemplated byany Restricted Subsidiary after the Closing Date;
(b) to the extent contributed in cash to the common equity of the Borrower and Not Otherwise Applied, the Transaction Agreement) and proceeds from the fees and expenses related thereto owed to Affiliates, including any payment to holders sale of Equity Interests of the Borrower or any direct or indirect parent thereof (immediately prior other than Disqualified Stock, Excluded Contributions or Cure Amounts), in each case to giving effect any future, present or former employee, manager, officer director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof that occurs after the Closing Date; and
(c) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries or any Parent Entity that are foregone in return for the receipt of Equity Interests of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent thereof;
(7) Restricted Payments to purchase, repurchase, retire, redeem or otherwise acquire (or permit any direct or indirect parent entity to acquire) Equity Interests of the Borrower or any direct or indirect parent thereof in an aggregate amount per fiscal year not to exceed the greater of (a) $25.0 million and (b) an amount equal to the TransactionsEquivalent Percentage of the amount set forth in clause (a) multiplied by TTM Consolidated EBITDA as of the applicable date of determination, in each case determined as of the time of making such Restricted Payment;
(8) Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):
(a) distributions made pursuant to Section 4.01(b) of the LLC Agreement;
(b) operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses and Public Company Costs) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to any such Parent Entity’s separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(c) franchise taxes and other fees, taxes and expenses in connection with, with (i) the ownership of the Borrower or as a result of, their exercise any Restricted Subsidiary or (ii) the maintenance of appraisal rights and the settlement of Borrower’s or any claims such parent entity’s corporate or actions (whether actual, contingent or potential) with respect theretolegal existence;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision under Sections 6.08(3), (5), (7), (16), (17), (19) and (21), in each case to the extent such payments are due at the time of Section 7.04 or 7.08 other than Section 7.08(f)such Restricted Payment;
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02Permitted Investment; provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) Holdings shallthe Borrower will, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) or (2B) the merger (to the extent permitted in Section 7.046.05) of the Person formed or acquired with or into the Borrower or its a Subsidiary (which shall be a Restricted Subsidiaries Subsidiary to the extent required by Section 6.04) in order to consummate such Investment;
(f) costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Permitted AcquisitionInvestment, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)whether or not consummated; and
(vg) if a Holdings Election Event shall occur(i) customary salary, the proceeds of which shall be used by Holdings bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (ii) payments permitted under Sections 6.08(7);
(9) Restricted Payments to pay (or permit any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof entity to pay) fees and expenses cash in lieu of the issuance of fractional Equity Interests in connection with the exercise of warrants, upon the conversion or exchange of Equity Interests of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Equity Interests or any Permitted Investment;
(10) [Reserved];
(11) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to Affiliatesa Restricted Subsidiary of the Borrower) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director (other than Disqualified Stock) of the Borrower or any Parent Entity or from the substantially concurrent contribution of its Subsidiaries pursuant common equity capital to the Borrower, in each case that are Not Otherwise Applied, other than (a) Excluded Contributions and (b) Cure Amounts;
(12) Restricted Payments that are made with Excluded Contributions that are Not Otherwise Applied;
(13) Restricted Payments of Investments in one or more Unrestricted Subsidiaries;
(14) Restricted Payments (the proceeds of which may be utilized by any employee or director equity planParent Entity) in an aggregate amount not to exceed, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) when taken together with any employee prepayments, repayments, redemptions, purchases, defeasances or director satisfactions made under clause (1)(f) of Section 6.11, the greater of (i) $125.0 million and (ii) an amount equal to the Equivalent Percentage of the Borrower or any amount set forth in clause (i) multiplied by TTM Consolidated EBITDA as of its Subsidiariesthe applicable date of determination, in each case determined as of the time of making such Restricted Payment; provided, howeverin each case, that the aggregate amount no Event of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing either immediately before, or would result therefromafter, giving Pro Forma effect to, such Restricted Payment;
(15) Restricted Payments; provided that both immediately prior to and after giving Pro Forma Effect to such Restricted Payment, the RP Payment Conditions are satisfied; and
(16) the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, or exercise, transfer, assignment, unwinding, settlement or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Bond Hedge Transaction; the issuance of, entry into, performance of obligations under, or repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any related Permitted Warrant Transaction; and the issuance of, entry into performance of obligations under (including any payments of interest), conversion, exercise, repurchase, redemption, transfer, assignment, unwinding, settlement, cancellation or early termination of, or the satisfaction of any condition that would permit or require any of the foregoing, any Convertible Indebtedness, in each case, whether in cash, common Capital Stock of Borrower or any direct or indirect parent of Borrower or other securities or property following a merger event or other change of the common Capital Stock of Borrower or such parent and whether in whole or in part and including by netting or set-off. The amount set forth in Section 6.07(14) may make additional Restricted Payments in an aggregate amount(without duplication), together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted Payments, be utilized by this clause (h), not the Borrower or any Restricted Subsidiary to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing make or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of hold any Investments made pursuant without regards to Section 7.02(v)6.04 or (ii) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds prepay, repay redeem, purchase, defease or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice otherwise satisfy prior to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of scheduled maturity thereof any Receivables Management Subsidiary Junior Financing without regards to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Section 6.11.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Restricted Payments. Declare or None of the Borrower nor any of the Restricted Subsidiaries shall make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) any Restricted Payments in connection with the Transaction Payment; provided that (including any amounts to i) no Event of Default shall have occurred and be paid under, continuing or contemplated bywould result therefrom and (ii) after giving effect thereto, the Transaction Agreement) and the fees and expenses related thereto owed Borrower shall be in compliance, on a Pro Forma Basis, with a Net Total Leverage Ratio of equal to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoless than 4.25:1.00;
(d) Restricted Payments in an aggregate amount not to exceed the Available Amount Basket; provided that the Available Amount Conditions are satisfied;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e), (m), (n), (r), (x), (z) or (aa)), 7.04 or 7.08 7.07 (other than Section 7.08(fSections 7.07(f) or 7.07(k));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings, the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $25,000,000 in any calendar year or $40,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) so long as no Event of Default has occurred and is continuing on the date such Restricted Payment is made, Restricted Payments in an aggregate amount equal, when combined with prepayments of Indebtedness pursuant to Section 7.10(a)(iv), to the greater of (i) $50,000,000 and (ii) 25% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments); provided that following consummation of the WBR Specified Transaction, the foregoing cap on Restricted Payments under this Section 7.06(h) shall be determined without giving effect to the foregoing clause (ii) unless and until such time as the Borrower delivers a certificate certifying that the Net First Lien Leverage Ratio is less than or equal to 4.25:1.00 as of the last day of a fiscal quarter;
(i) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes and similar Taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) with respect to each taxable year (or a portion thereof) ending after the Closing Date for which the Borrower is treated as either a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to the Borrower’s direct or indirect equity owners in an aggregate amount equal to the product of (x) the amount of taxable income of the Borrower (in the case of a disregarded entity, computed as if such entity were a partnership) allocated to the direct or indirect equity owners of the Borrower for such taxable year (or a portion thereof) and (y) the highest marginal effective combined U.S. federal, state and local income tax rate applicable to an individual that is resident in New York City for such taxable year (taking into account any cumulative net taxable loss of the Borrower for prior taxable years to the extent such is available to reduce taxes in the current taxable year (or portion thereof) and the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income; provided that any payment pursuant to the foregoing shall be reduced by any such income taxes paid directly by (or withheld on behalf of) the Loan Parties or any of their Restricted Subsidiaries; provided further that any distributions under this clause (iii) with respect to any such taxable year may be made to allow such equity owners to pay estimated taxes during the course of the taxable year using reasonable estimates of the anticipated aggregate amount of distributions for such taxable year, with any excess of the actual amounts of distributions permitted for such taxable year over the aggregate installments with respect to any such taxable year increasing any distributions under this clause (iii) with respect to the immediately subsequent taxable year (and, to the extent such excess is not fully absorbed in the immediately subsequent taxable year, the following taxable years)) (any such Restricted Payment permitted under this clause (iii), a “Permitted Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and Investment in each case, the Borrower shall cause accordance with the requirements of Section 6.11 (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to be complied withpay customary salary, within bonus and other benefits payable to officers and employees of any direct or indirect parent company of the time periods specified therein (Borrower to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or acquisition permitted under Section 7.02 and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of the Borrower or any of such conversion and may make payments on convertible Indebtedness in accordance with its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause terms;
(fl) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to after the consummation of a Qualifying Qualified IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional the payment of a dividend within 30 days after the date of declaration thereof, if at the date of declaration the payment of such dividend would have complied with the provisions of this Agreement;
(m) Restricted Payments that are made (i) with Excluded Contribution Assets or the proceeds thereof within thirty (30) days after the date such assets were designated as such or (ii) without duplication with clause (i) but so long as the Available Amount Conditions are satisfied, in an amount equal to the Net Proceeds from a Disposition of Excluded Contribution Assets, in each case, to the extent Not Otherwise Applied;
(n) the Borrower may make Restricted Payments in an aggregate amount, together with respect of redeeming the aggregate amount of WBR Specified Preferred Equity so long as (i) prepayments, redemptions, purchases, defeasances no Event of Default has occurred and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) is continuing or would result therefrom and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Net First Lien Leverage Ratio as of the last day of any Test Period being the most recently ended period of four consecutive fiscal quarters for which financial statements are required to have been delivered, on a pro forma basis after giving effect to such WBR Specified Transaction and such redemption and all other appropriate pro forma adjustments, shall be equal or less than 5.0 to 1.0) and (B) the Cumulative Growth Amount5.00:1.00;
(io) so long as no Default shall have occurred and be continuing or would result therefrom, from the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount Borrower’s cumulative retained portion of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromExcess Cash Flow, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in WBR Specified Preferred Equity provided that the Net First Lien Leverage Ratio as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are required to have been delivered, on a pro forma basis after giving effect to such notice only so long as no Default Restricted Payment and all other appropriate pro forma adjustments, shall have occurred and be continuing equal or would result therefromless than 5.00:1.00; and
(lp) the declaration and payment Borrower may make Restricted Payments consisting of dividends and distributions on (but not redemptions of) the WBR Specified Preferred Equity Interests in an amount up to $23,000,000 per annum. For purposes of any Receivables Management Subsidiary to holders of minority interests substantially consistent determining compliance with past practice to the extent such holder (or its affiliates) participates this Section 7.06, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (including as a) through (p) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a lender portion of such Restricted Payment 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 financier under any financing provided to a Receivables Management Subsidiary)more of the above clauses.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
: (a) (i) the Borrowers and each Restricted Subsidiary may make Restricted Payments to the Borrower Parents, the Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;); (b)
(bi) the Borrower Parents may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parents may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person;
, Section 7.06 or Section 7.08 (or to build the Available Equity Amount or Excluded Contribution Amount)); (c) Restricted Payments made on or after the Closing Date for fees and expenses in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
; (d) to the extent constituting Restricted Payments, the Borrower Parents, the Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f);
7.07; 146 4889-7664-6516 (e) repurchases of Equity Interests in the Borrower ordinary course of business in the Parents (or any direct or indirect parent thereof), the Borrowers or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
; (f) any Parent, the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (Borrowers or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower it or any direct or indirect parent thereof held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower foregoing) of any Parent (or any direct or indirect parent of such Parent) or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of any Parent (or any direct or indirect parent thereof), the Borrowers or any Subsidiary; provided that such payments do not to exceed $26,500,000 in any calendar year, provided that any unused portion of the Borrower or preceding basket for any of its Subsidiaries; providedcalendar year may be carried forward to succeeding calendar years, however, that so long as the aggregate amount of payments all Restricted Payments made pursuant to this clause (fSection 7.06(f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which after giving effect to such carry forward) shall increase not exceed $53,000,000; provided, further, that cancellation of Indebtedness owing to $40,000,000 subsequent to the consummation any Parent (or any direct or indirect parent thereof) or any of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing its Subsidiaries from members of management of such Parent, any of such Parent’s direct or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as indirect parent companies or any of the last day Borrowers or any Restricted Subsidiary in connection with a repurchase of Equity Interests of any Test Period being less than 5.0 of such Parent’s direct or indirect parent companies will not be deemed to 1.0constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; (g) each Parent, each Borrower, and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and it’s the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with to any direct or indirect holder of an Equity Interest in such Borrower or such Parent: (i) the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund make Permitted Tax Distributions; (ii) the payment proceeds of interest which shall be used to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees on Indebtedness of Holdings permitted (including (v) administrative, legal, accounting and similar expenses provided by Section 7.16; providedthird parties, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends (w) trustee, directors, managers and distributions general partner fees, (the “Restricted Payments Interest Expense Election”x) any judgments, settlements, penalties, fines or other costs and expenses in respect of the Indebtedness specified any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Parent to the extent such holder (the proceeds are used or its affiliateswill be used to pay expenses or other obligations described in this Section 7.06(g)) participates which are reasonable and customary and incurred in the Receivables Management Business ordinary course of business and attributable to the ownership or operations of such Parent and its Subsidiaries (including as a lender any reasonable and customary indemnification claims made by directors, managers or financier officers of any direct or indirect parent of such Parent attributable to the direct or indirect ownership or operations of such Parent and the Subsidiaries) and fees and expenses otherwise due and payable by any Parent, any Borrower or any Restricted Subsidiary and permitted to be paid by such Parents, such Borrower and such Restricted Subsidiaries under this Agreement not to exceed $21,250,000 in any financing provided to a Receivables Management Subsidiary).fiscal year;
Appears in 1 contract
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and of the Borrower (ii) each non-wholly owned and, in the case of a Restricted Payment by a Restricted Subsidiary may make Restricted Payments that is not wholly-owned directly or indirectly by the Borrower, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $10,000,000 in any calendar year (which shall increase to $20,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $20,000,000 in any calendar year or $40,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions and other than any of the proceeds included in the Cumulative Equity Credit) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(v), (x) the greater of (i) $62,000,000 and Holdings (ii) 2.00% of Total Assets, plus (y) the portion, if any, of the Cumulative Equity Credit on such date that the Borrower elects to apply to this clause (y) plus (z) so long as (i) no Default has occurred and is continuing or would result therefrom and (ii) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of the immediately preceding Test Period is not greater than 7.50 to 1.00, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that no amounts under this clause (z) may be used for Restricted Payments until the Third Lien Notes are repaid, redeemed, purchased, defeased or otherwise satisfied in full.
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes franchise, excise and similar Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of the Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger or amalgamation (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)its Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year other direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the Cumulative Growth Amountan aggregate amount per annum not to exceed 3.50% of Market Capitalization;
(im) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions[reserved];
(jn) so long as no Default shall have occurred and be continuing [reserved];
(o) the distribution, by dividend or would result therefromotherwise, of Equity Interests of, or Indebtedness owed to the Borrower may make or a Restricted Payments with Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the proceeds primary assets of the issuance of Qualified which are cash and/or Cash Equivalents) (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 Borrower;
(k) if the Borrower shall become the Subsidiary primary assets of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromare cash and/or Cash Equivalents)); and
(lp) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice Restricted Payments that are made in (i) an amount equal to the extent amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such holder (property or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)assets was financed with Excluded Contributions.
Appears in 1 contract
Sources: Credit Agreement (DJO Finance LLC)
Restricted Payments. Declare Neither Holdings nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings, and to other Restricted Subsidiaries and of Holdings (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Holdings and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.70 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower Holdings and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) Holdings and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $45,000,000 in any calendar year, plus for calendar year 2018, an additional $20,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $90,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the Borrower and Net Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Holdings may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i) Investments permitted pursuant to Section 7.02(n) that have not otherwise been made, plus (ii) the greater of $120,000,000 and 20.0% of Consolidated EBITDA minus amounts applied to the prepayment of Junior Financing pursuant to Section 7.13(a)(iv)(1), plus (iii) so long as no Event of Default under Sections 8.01(a) or (f) has occurred or is continuing, the portion, if any, of the Cumulative Credit on such date that Holdings elects to apply to this paragraph;
(i) Holdings may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence or good standing under applicable law;
(iii) for any taxable period ending after the Closing Date (A) in which Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which Holdings is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of Holdings and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with Holdings as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to Holdings or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to Holdings or the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Holdings or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of Holdings and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of Holdings and its Restricted Subsidiaries;
(gj) the Borrower may pay for the repurchase, retirement payments made or other acquisition expected to be made by Holdings or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) so long as no Default shall have occurred and be continuing Holdings or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) split or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) any Restricted Payment by Holdings or any other direct or indirect parent of Holdings to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) Holdings and its Restricted Subsidiaries from the Parent IPO plus (B) 5.0% per annum of the Cumulative Growth AmountMarket Capitalization of Parent and its Subsidiaries determined at the time of declaration of such Restricted Payment;
(im) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount [reserved];
(together with the aggregate amount of Investments made pursuant to Section 7.02(v)n) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized distributions in connection with the Transactionsmaking of any “AHYDO Catch-up Payments,” in respect of any Junior Financing defined as payments on any indebtedness to avoid the application of the “Applicable High-Yield Discount Obligation” rules of Section 163 of the Code to such indebtedness;
(jo) so long as no Default shall have occurred and be continuing the distribution, by dividend or would result therefromotherwise, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to Holdings or a Restricted Subsidiary by an Unrestricted Subsidiary; provided that such Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries) owns no assets other than Equity Interests of one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the Borrower;
(k) if the Borrower shall become the Subsidiary primary assets of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromare cash and/or Cash Equivalents); and
(lp) Restricted Payments that are made (i) in an amount equal to the declaration amount of Excluded Contributions previously received and payment that Holdings elects to apply under this clause (p) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of dividends and distributions on property or assets acquired after the Equity Interests Closing Date, if the acquisition of any Receivables Management Subsidiary to holders of minority interests substantially consistent such property or assets was financed with past practice Excluded Contributions, in each case, to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Not Otherwise Applied.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent thereof) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of the Borrower (or any direct or indirect parent thereof), any Intermediate Holding Company, Holdings or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $60,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $85,000,000 in any calendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Original Effective Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant such jurisdiction of Holdings the Borrower (or any such direct or indirect parent thereofparent) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; and
(i) (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 the sum of (A) up to 6.0% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from a Qualifying IPO and (B) Restricted Payments in an aggregate amount per annum not to exceed (x) 3.50% of Market Capitalization, if, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio is greater than 4.00:1.00 and (y) 4.75% of Market Capitalization, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be less than or equal to 4.0:1.00;
(j) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(iv) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) the greater of $75,000,000 120,000,000 and 4.0% of Total Assets, (such ii) the aggregate amount to be increased to $100,000,000 upon of the Total Leverage Ratio Net Cash Proceeds of Permitted Equity Issuances that are Not Otherwise Applied and (iii) if as of the last day of any the immediately preceding Test Period being less than 5.0 to 1.0) and Period, the Interest Coverage Ratio exceeds 2.00:1.00 (B) calculated on a Pro Forma Basis), the Cumulative Growth Amount;amount of the Available Amount that is Not Otherwise Applied; and
(il) so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used the Total Leverage Ratio (calculated on a Pro Forma Basis) immediately after giving effect to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice Restricted Payment does not exceed 3.75:1.00. Notwithstanding anything to the Administrative Agent stating that contrary herein, the Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make such dividends and distributions (the “any Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Payment consisting of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as proceeds from a lender or financier under any financing provided to a Receivables Management Subsidiary)Qualified Securitization Transaction.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, and shall not cause or makepermit any Restricted Subsidiary to, directly or indirectly, any make a Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner repurchase of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon the exercise of stock or other equity options or warrants if to the extent such Equity Interests represent a portion of the exercise price of such those stock or other equity options and any repurchase or other acquisition of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants, incentives or other rights to acquire Equity Interests;
(fb) payments of cash, dividends, distributions, advances or other Restricted Payments by the Borrower and its or any Restricted Subsidiaries may make Restricted Payments Subsidiary to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
allow the payment of cash in lieu of the issuance of fractional shares upon (i) the proceeds exercise of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary options or affiliated returns for the relevant jurisdiction of Holdings (warrants or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds conversion or exchange of which shall be used by Holdings Equity Interests of any such Person;
(or any direct or indirect parent thereofc) payments to pay operating expenses incurred dissenting stockholders of the Borrower not to exceed $5,000,000 in the ordinary course aggregate made (i) pursuant to applicable law or (ii) in connection with the settlement or other satisfaction of business legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets in connection with a transaction not prohibited by this Agreement;
(d) so long as (i) no Event of Default shall exist on the date of declaration thereof and other corporate overhead costs (ii) no Event of Default under Section 9.1.1 [Payments Under Loan Documents], Section 9.1.12 [Involuntary Proceedings] or Section 9.1.13 [Voluntary Proceedings] has occurred and expenses (including administrativeis continuing on the date of payment thereof, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred distributions in cash in respect of any fiscal quarter of the ordinary course Borrower to the holders of business, the Borrower’s Equity Interests in an aggregate amount not to exceed $3,000,000 the “Available Cash” (as defined in the Partnership Agreement) with respect to such fiscal quarter;
(e) prepayment of any fiscal year plus any reasonable and customary indemnification claims made by directors or officers Subordinated Obligations with Refinancing Indebtedness thereof; and
(f) repurchases of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations Subordinated Obligations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any Guarantor at a purchase price not greater than 100% of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing principal amount of such Investment and (B) Holdings shallSubordinated Obligations in the event of an asset disposition, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each casecase plus accrued and unpaid interest thereon, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occurterms of such Subordinated Obligations, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) but only if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred has complied with and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by fully satisfied its obligations in accordance with Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)8.2.7 [Dispositions].
Appears in 1 contract
Sources: Revolving Credit Facility (CNX Midstream Partners LP)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parent Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08);
(c) Restricted Payments made on or after the Effective Date in connection with the Transaction (Transactions, including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoassociated therewith;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) (i) repurchases of Equity Interests in the ordinary course of business in the Parent Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
warrants and (fii) payments made or expected to be made by the Parent Borrower and its or any Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction Subsidiary in respect of consolidatedwithholding or similar Taxes payable or expected to be payable by any future, combinedpresent or former employee, unitary director, officer, manager, consultant or affiliated returns independent contractor of the Parent Borrower or any Restricted Subsidiary (or their respective Affiliates, management investment vehicles, estates, descendants, family members, spouses and former spouses and any trusts, limited liability companies, corporations, partnerships or other entities for the relevant jurisdiction benefit of, or controlled by, any of Holdings the foregoing) in connection with the exercise of stock options or the grant, vesting or delivery of Equity Interests (including, without limitation, restricted stock units) of the Parent Borrower (or any direct or indirect parent thereof) attributable to Holdings, company of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyParent Borrower);
(iif) [reserved];
(g) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments with (a) proceeds of which shall be used received by Holdings or made to the Parent Borrower (or any direct or indirect parent thereofthereof and contributed by such parent to the Parent Borrower) to pay operating expenses incurred in from any capital contributions or issuance of Qualified Equity Interests (or issuance of debt securities by the ordinary course Parent Borrower or any 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 its Restricted Subsidiaries that have been converted into or exchanged for Qualified Equity Interests of the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (Parent Borrower or any direct or indirect parent thereof), (b) attributable to proceeds received by the Parent Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any JV Entity or operations of the Borrower and its Subsidiaries;
Unrestricted Subsidiary, and/or (iiic) the proceeds of which shall be used any cash dividends and/or other cash distributions received by Holdings (the Parent Borrower or any direct Restricted Subsidiary from any JV Entity or indirect parent thereof) to pay franchise taxes and other feesUnrestricted Subsidiaries, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, following the Borrower shall cause the requirements of Effective Date and, in each case, other than any such amounts that have been utilized to make Investments pursuant to Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v7.02(n) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries payments pursuant to Section 7.08(a)(iv) (provided that (x) at the time of any employee or director equity plansuch prepayment, employee or director stock option plan or any redemption, purchase, defeasance and other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director payment, no Specified Event of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, therefrom and (y) on a Pro Forma Basis the Parent Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made would be able to incur $1.00 pursuant to Section 7.13(a)(iv7.03(r)(i));
(h) and the Parent Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (ii) loans and advances made it being understood that a distribution pursuant to this Section 7.02(m7.06(h) in lieu shall be deemed to have utilized capacity under such other provision of Restricted Payments permitted by this clause (hAgreement), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing the Parent Borrower or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments (a) pay cash in an amount (together with the aggregate amount lieu of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized fractional Equity Interests in connection with the Transactionsany dividend, split or combination thereof, or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) so long as no Specified Event of Default shall have has occurred and be continuing or would result therefromis continuing, the Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments with in an amount not to exceed, at the proceeds time of such Restricted Payment, the greater of (x) $247,800,000 and (y) 35% of Consolidated EBITDA of the issuance of Qualified Equity Interests of Parent Borrower and its Restricted Subsidiaries for the Borrowermost recently ended Test Period calculated on a Pro Forma Basis;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Specified Event of Default shall have has occurred and be continuing is continuing, the Parent Borrower or would result therefrom, dividends and distributions which will be used any Restricted Subsidiary may repurchase Equity Interests pursuant to fund any stock repurchase or similar agreement (including any accelerated share repurchase or other structured share repurchase agreement) approved by the payment board of interest and fees on Indebtedness directors (or appropriate equivalent committee thereof) of Holdings permitted by Section 7.16the Parent Borrower; provided, that the Borrower aggregate amount of such payments shall have elected to include such not exceed the greater of (x) $354,000,000 and (y) 50% of Consolidated EBITDA in any fiscal year (with unused amounts in its Consolidated Interest Expense by delivering an irrevocable written notice any fiscal year being carried over to the Administrative Agent stating that the Borrower will make such dividends and distributions immediately succeeding fiscal year);
(the “Restricted Payments Interest Expense Election”l) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom[reserved];
(m) [reserved]; and
(ln) the declaration Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) no Event of Default has occurred and payment is continuing and (ii) the Total Leverage Ratio of dividends and distributions the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than the Equity Interests of Total Leverage Ratio that is 0.50:1.00 lower than the Total Leverage Ratio required under Section 7.11 (without giving effect to any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management SubsidiaryLeverage Increase Period thereunder).
Appears in 1 contract
Sources: Credit Agreement (Nutanix, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and or to any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) each of Holdings and the Borrower may redeem in whole or in part any of its respective Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) Holdings, the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) Holdings, the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent of Holdings) by any future, present or former employee, director, officer, consultant or distributor (or any Controlled Investment Affiliate or Immediate Family Member of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any future, present or former employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer, consultant or distributor of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower (or of any direct or indirect parent of the Borrower) in connection with any such repurchase, retirement or other acquisition or retirement) in an aggregate amount after the Closing Date together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(n) in lieu of Restricted Payments permitted by this clause (f) not to exceed $7,500,000 in any fiscal year with unused amounts in any fiscal year being carried over to the next two succeeding fiscal years; provided that such amount in any fiscal year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries after the Closing Date; provided, further, that the cancellation of Indebtedness owing to the Borrower from any future, present or former employees, directors, officers, managers, or consultants of the Borrower (or their respective Controlled Investment Affiliate or Immediate Family Member), any direct or indirect parent company of the Borrower or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereof:of Holdings (and, where applicable, Holdings may make Restricted Payments to any direct or indirect parent thereof in the amount of such Restricted Payments made to it):
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state, provincial or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries; provided, that Restricted Payments made under this clause (i) in respect of taxes attributable to the income of Unrestricted Subsidiaries determined as if of the Borrower and may be made only to the extent that such Unrestricted Subsidiaries have made cash payments for such purpose to the Borrower or its Subsidiaries filed separatelyRestricted Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, attributable to the ownership or operations of the Borrower and its Subsidiaries in an aggregate amount, together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(n) in lieu of Restricted Payments permitted by this clause (g)(ii), not to exceed $3,000,000 2,500,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of Holdings, the Borrower and its the Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in not prohibited by Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted not prohibited by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(gh) Holdings, the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (provided, however, that no such payment shall be made if the obligation giving rise to the requirement to make such payment was designed to avoid the limitations set forth in this Agreement) and (ii) honor any conversion request by a holder of convertible Indebtedness permitted hereunder and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness permitted hereunder in accordance with its terms;
(i) the Borrower may pay for payment of any dividend or distribution within sixty (60) days after the repurchasedate of declaration thereof, retirement or other acquisition or retirement for value if at the date of Equity Interests declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the common stock of the Borrower or Holdings following the first public offering of Holdings’ common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds contributed to the Borrower from any such public offering, other than public offerings registered on Form S-4 or Form S-8 (or, in each case, any comparable successor form);
(k) 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 any future, present or former employee employee, director, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments to Holdings (the proceeds of which may be used by Holdings to make additional Restricted Payments to any direct or indirect parent thereof) in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings Financing made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.12(a)(i)(D), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (Bi) the Cumulative Growth Amount;
greater of $15,000,000 and 2.00% of Total Assets, determined at the time of such Restricted Payment, plus (i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(kii) if the Borrower shall become Senior Secured Leverage Ratio calculated on a pro forma basis in accordance with Section 1.07 for such Restricted Payment for the Subsidiary of Holdingsmost recently ended Test Period does not exceed 3.25 to 1.0, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include Available Amount at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 1 contract
Sources: Credit Agreement (Primedia Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:except (subject to the proviso in Section 7.02(m)):
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments with respect to any class or type of Equity Interests, to (i) the Borrower and any other or such Restricted Subsidiary and (ii) to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant such class or type of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower and its Restricted Subsidiaries may make Restricted Payments in connection with necessary to consummate the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoSpecial Dividend;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(e), (m) and (r)), Section 7.04, or Section 7.05 (other than Section 7.05(e));
(e) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings:
(i) the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) the Tax liability for each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns filed by or on behalf of Holdings or any direct or indirect parent thereof; provided that such proceeds are limited to the portion of such Tax liability attributable to the income of the Borrower and/or its applicable Subsidiaries, 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) such entities’ operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors or officers of Holdings or any direct or indirect parent thereof attributable to the ownership or operations of Holdings, the Borrower and its Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings or any direct or indirect parent thereof;
(iv) the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any future, present or former employee, director, officer, member of management or consultant of Holdings or any direct or indirect parent thereof, or any of its Subsidiaries (or any Controlled Investment Affiliate or Immediate Family Member thereof); provided that the aggregate amount of Restricted Payments made under this clause (e)(iv) does not exceed in any calendar year $10,000,000 (or, after a Qualifying IPO, $15,000,000) (with unused amounts in any calendar year being carried over to the two (2) immediately succeeding calendar years, subject to a maximum of $20,000,000 in any calendar year (or, after a Qualifying IPO, $30,000,000)); and provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings to employees, directors, officers, members of management or consultants of Holdings or any direct or indirect parent thereof or of its Subsidiaries that occurs after the Closing Date to the extent such proceeds constitute Eligible Equity Proceeds plus (B) the cash proceeds of key man life insurance policies received by Holdings or any direct or indirect parent thereof (to the extent such proceeds are contributed to the Borrower), the Borrower or any Restricted Subsidiary after the Closing Date (provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses (A) and (B) above in any calendar year) less (C) the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (e)(iv);
(v) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with
(1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a 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 (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 Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12;
(vi) the proceeds of which shall be used by Holdings to make (or to make a payment to any direct or indirect parent of Holdings to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any direct or indirect parent thereof; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors or the managing board, as the case may be, of the Borrower (or any authorized committee thereof));
(vii) the proceeds of which shall be used by Holdings or any direct or indirect parent thereof to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering not prohibited by this Agreement (in the case of any such parent or indirect parent, only to the extent such parent or indirect parent does not hold material assets other than those relating to the Borrower and its Subsidiaries or their respective businesses);
(viii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent thereof to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; and
(ix) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) amounts of the type described in Sections 7.08(g) or 7.08(i), in each case to the extent the applicable payment would be permitted under the applicable clause in Section 7.08 if such payment were to be made by 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 its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that does not exceed the sum of (i) the greater of (x) $35,000,000 and (y) 1.00% of Total Assets as of the end of the Test Period last ended (such amount to be reduced on a dollar for dollar basis by any use of this Section 7.06(f)(i) reallocated to prepayments of Junior Financings pursuant to Section 7.13(i) and) and (ii) the Cumulative Amount as in effect immediately prior to the time of making of such Restricted Payment; provided that, in the case of any Restricted Payment under this clause (f) made with the Cumulative Amount, the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such Restricted Payment and the use of proceeds thereof;
(g) repurchases of Equity Interests in Holdings (or any direct or indirect parent company), the 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;
(fh) payments made or expected to be made by the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements respect of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (withholding or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower similar Taxes payable by any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(i) cash payments in lieu of fractional shares in connection with the exercise of warrants, options or other securities, convertible or exchangeable for Equity Interests of Borrower or any direct or indirect parent company of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)Borrower;
(hj) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances therefrom and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default Amount shall have occurred and not be continuing or would result therefromnegative after giving effect thereto, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Borrower’s common stock (or the payment of dividends to any direct or indirect parent entity of the Borrower to fund a payment of dividends on such entity’s common stock), following the consummation of the first public offering of the Borrower’s common stock or the common stock of any Receivables Management Subsidiary of its direct or indirect parent companies after the Closing Date, of up to holders 6% per annum of minority interests substantially consistent with past practice the net cash proceeds received by or contributed to the extent Borrower in or from any such holder (public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Form S-8.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent thereof) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of the Borrower (or any direct or indirect parent thereof), any Intermediate Holding Company, Holdings or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $60,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $85,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Original Effective Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant such jurisdiction of Holdings the Borrower (or any such direct or indirect parent thereofparent) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; and
(i) (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 the sum of (A) up to 6.0% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from a Qualifying IPO and (B) Restricted Payments in an aggregate amount per annum not to exceed (x) 3.50% of Market Capitalization, if, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio is greater than 4.00:1.00 and (y) 4.75% of Market Capitalization, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be less than or equal to 4.0:1.00;
(j) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hk) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(iv) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) the greater of $75,000,000 120,000,000 and 4.0% of Total Assets, (such ii) the aggregate amount to be increased to $100,000,000 upon of the Total Leverage Ratio Net Cash Proceeds of Permitted Equity Issuances that are Not Otherwise Applied and (iii) if as of the last day of any the immediately preceding Test Period being less than 5.0 to 1.0) and Period, the Interest Coverage Ratio exceeds 2.00:1.00 (B) calculated on a Pro Forma Basis), the Cumulative Growth Amount;amount of the Available Amount that is Not Otherwise Applied; and
(il) so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used the Total Leverage Ratio (calculated on a Pro Forma Basis) immediately after giving effect to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Payment does not exceed 3.
Appears in 1 contract
Sources: Credit Agreement (Catalent, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(a) (ix) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to other their respective holdings of the type of Equity Interest in respect of which such Restricted Subsidiaries and Payment is being made, or (iiy) each non-wholly owned Restricted for so for so long as such Subsidiary may make Restricted Payments is a member of a group filing a consolidated, combined or unitary return with the Borrower, to the Borrower and any other Restricted holder of direct equity interests of such Subsidiary permitted hereunder in order to pay consolidated, combined or unitary federal, state or local taxes which payments by such Subsidiary are not in excess of the tax liabilities that would have been payable by such Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based its Subsidiaries on their relative ownership interests of the relevant class of Equity Interestsa stand-alone basis;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the Transaction (including any amounts to be paid under, proceeds received from the substantially concurrent issue of new shares of its common stock or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of other common Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoInterests;
(d) with respect to the extent constituting any Restricted PaymentsPayment not otherwise permitted under clauses (a) through (c) of this Section, the Borrower may declare and the make any such Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision Payment so long as (i) no Event of Default shall have occurred under Section 7.04 or 7.08 other than Section 7.08(f8.01(a);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
, (f) or (g) and be continuing at the Borrower and its Restricted Subsidiaries may make Restricted Payments time of such action or would result therefrom, (ii) after giving pro forma effect to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdingssuch action, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred is in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations pro forma compliance with each of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted covenants set forth in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum 7.11 (without giving effect to the following provisoproviso set forth in Section 7.11(b) regarding the TAOS Judgment) as of the date of the most recent financial statements delivered pursuant to Section 6.01(a) or (b), (iii) immediately prior to such action, and after giving effect thereto, the Borrower and its Subsidiaries shall have minimum Liquidity of $30,000,000 60,000,000, and (iv) with respect to any such Restricted Payment that constitutes a cash dividend declared and made by the Borrower to its stockholders, the aggregate amount of all such cash dividends declared and made in any calendar fiscal year (which shall increase to not exceed $40,000,000 subsequent to the consummation of a Qualifying IPO);85,000,000; and
(he) so long as (i) no Event of Default shall have occurred under Section 8.01(a), (f) or (g) and be continuing at the time of such action or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made after giving pro forma effect to such action, the Consolidated Fixed Charge Coverage Ratio is at least 1.25 to 1.00 as of the date of the most recent financial statements delivered pursuant to Section 7.02(m6.01(a) in lieu of Restricted Payments permitted by this clause or (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0b) and (Biii) immediately prior to such action, and after giving effect thereto, the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromConsolidated Leverage Ratio is less than 3.00 to 1.00, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds purchase, redeem or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified otherwise acquire for cash Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted issued by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)it.
Appears in 1 contract
Sources: Credit Agreement (Intersil Corp/De)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, if consented to by the Required Lenders, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests of such Person (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other than Disqualified Restricted Subsidiary and to each other owner of Equity Interests not otherwise permitted by Section 7.03) of such PersonRestricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments made in connection with the Transaction (including respect of working capital adjustments or purchase price adjustments pursuant any amounts to be paid under, Permitted Acquisition or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoother permitted Investments;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than 7.02(e)), Section 7.08(f7.04 (other than 7.04(g)), 7.05 (other than 7.05(e)(iv) and 7.05(g)) or Section 7.08 (other than 7.08(c), 7.08(d), and 7.08(e));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower Borrower) held by any future, present or former employee employee, officer, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary or the Borrower or (ii) make Restricted Payments in the form of distributions to allow the Borrower to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of its Subsidiaries the foregoing) of a Restricted Subsidiary or the Borrower in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, officer or director consultant of such Restricted Subsidiary or the Borrower or any of its Restricted Subsidiaries; provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fSection 7.06(f) does shall not exceed $6,000,0001,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to the immediately succeeding calendar years yearsyear subject to a maximum (without giving effect to the following proviso) of $30,000,000 12,000,0002,000,000 in any calendar year); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(which shall A) amounts used to increase the Cumulative Credit pursuant to $40,000,000 subsequent to clauses (b) and (c) of the consummation definition of a Qualifying IPO)“Cumulative Credit;”
(B) Excluded Contributions;
(hC) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower or any of the its Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) so long as no Event of Default has occurred and is continuing or would result therefrom (other than (i) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (a) of the definition thereof, in which case no Event of Default pursuant to Section 8.01(a) or (f) shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and or (ii) loans and advances in the case of any Restricted Payment made pursuant to Section 7.02(m) using the portion of the Cumulative Credit described in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (Ac)(i) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(vdefinition thereof)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount not to exceed (x) (A) prior to the Amendment No. 1 Trigger Date, $2,500,000, and (B) on and after the Amendment No. 1 Trigger Date, $25,000,000 plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted Payment made pursuant to clause (y) above, solely to the extent such payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 4.00:1.00;47$1,000,000 in any fiscal year;
(h) [reserved];
(i) payments made or expected to be made by 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 each case, in connection with the proceeds exercise of stock options;
(i) [reserved ];
(i) any Restricted Payment by the issuance of Qualified Equity Interests of Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) on and after the BorrowerAmendment No. 1 Trigger Date only, additional Restricted Payments in an aggregate amount per annum not to exceed $10,750,000;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of fractional Equity Interests in connection with (x) any dividend, split or would result therefrom; andcombination thereof or (y) any Permitted Acquisition;
(l) Restricted Payments in the declaration and payment amount of dividends and distributions on any Excluded Contribution[reserved];
(m) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Equity Interests (“Treasury Capital Stock”) or Junior Financing made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of any Receivables Management Subsidiary the Borrower (other than Disqualified Equity Interests) (“Refunding Capital Stock”) or a substantially concurrent contribution to holders the equity (other than through the issuance of minority interests substantially consistent with past practice Disqualified Equity Interests or through an Excluded Contribution) of the Borrower; provided, however, that to the extent so applied, the Net Proceeds, or fair market value of property or assets or of marketable securities, from such holder sale of Equity Interests or such contribution will be excluded from clause (or its affiliatesc) participates in of the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Cumulative Amount;
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments in connection with made (i) on the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests date of the Borrower consummation of the Transactions, (immediately prior to giving effect ii) in respect of working capital adjustments or purchase price adjustments pursuant to the TransactionsAcquisition Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) shall not exceed $30,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar year); provided further that such amount in any calendar year may further be increased by an amount not to exceed the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, and Holdings when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), $70,000,000;
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 and Section 7.08 if such parent were subject to such sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause the
(1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08(i) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gi) payments made or expected to be made by Holdings, the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases, in each case, in connection with the exercise of stock options;
(j) Holdings, the Borrower or any of its the Restricted Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) pay cash in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized fractional Equity Interests in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing any dividend, split or would result therefromcombination thereof, the Borrower may make Restricted Payments with the proceeds or any Permitted Acquisition, or any vesting of the issuance of Qualified Equity Interests of the Borrower;Interests; and
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests amount of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Excluded Contribution.
Appears in 1 contract
Sources: Form 8 K
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests of such Person (and, in the case of such a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other than Disqualified Restricted Subsidiary and to each other owner of Equity Interests not otherwise permitted by Section 7.03) of such PersonRestricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments made in connection with the Transaction (including respect of working capital adjustments or purchase price adjustments pursuant any amounts to be paid under, Permitted Acquisition or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoother permitted Investments;
(d) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than 7.02(e)), Section 7.08(f7.04 (other than 7.04(g)), 7.05 (other than 7.05(e)(iv) and 7.05(g)) or Section 7.08 (other than 7.08(c), 7.08(d), and 7.08(e));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower Borrower) held by any future, present or former employee employee, officer, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of a Restricted Subsidiary or the Borrower or (ii) make Restricted Payments in the form of distributions to allow the Borrower to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of its Subsidiaries the foregoing) of a Restricted Subsidiary or the Borrower in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, officer or director consultant of such Restricted Subsidiary or the Borrower or any of its Restricted Subsidiaries; provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fSection 7.06(f) does shall not exceed $6,000,000 in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 12,000,000 in any calendar year); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(which shall A) amounts used to increase the Cumulative Credit pursuant to $40,000,000 subsequent to clauses (b) and (c) of the consummation definition of a Qualifying IPO)“Cumulative Credit”;
(hB) Excluded Contributions;
(C) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower or any of the its Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) so long as no Event of Default has occurred and is continuing or would result therefrom (other than (i) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (a) of the definition thereof, in which case no Event of Default pursuant to Section 8.01(a) or (f) shall have occurred and be continuing or would result therefrom, or (ii) in the case of any Restricted Payment made using the portion of the Cumulative Credit described in clause (c)(i) of the definition thereof), the Borrower may make Restricted Payments in an aggregate amount not to exceed (x) $25,000,000 plus (y) the Cumulative Credit at such time; provided that with respect to any Restricted Payment made pursuant to clause (y) above, solely to the extent such payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 4.00:1.00;
(h) [reserved];
(i) payments made or expected to be made by 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 each case, in connection with the exercise of stock options;
(i) any Restricted Payment by 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, together with amount per annum not to exceed $10,750,000;
(k) the aggregate amount Borrower or any of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) the Restricted Subsidiaries may pay cash in lieu of fractional Equity Interests in connection with (x) any dividend, split or combination thereof or (y) any Permitted Acquisition;
(l) Restricted Payments permitted in the amount of any Excluded Contribution;
(m) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Equity Interests (“Treasury Capital Stock”) or Junior Financing made by this exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Borrower (other than Disqualified Equity Interests) (“Refunding Capital Stock”) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Equity Interests or through an Excluded Contribution) of the Borrower; provided, however, that to the extent so applied, the Net Proceeds, or fair market value of property or assets or of marketable securities, from such sale of Equity Interests or such contribution will be excluded from clause (h), not to exceed the sum of (Ac) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(in) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Equity Interests of the Borrower or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Equity Interests of the Borrower or a Restricted Subsidiary, as the case may be, that, in each case, is permitted to be incurred pursuant to Section 7.03;
(o) the payment of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of declaration such Restricted Payment would have complied with the provisions of this Agreement;
(p) so long as no Event of Default shall have has occurred and be is continuing or would result therefrom, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio (together with calculated on a Pro Forma Basis) as of the aggregate amount end of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactionsmost recent Test Period is no greater than 2.50:1.00;
(jq) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom[reserved]; and
(lr) the declaration and payment dividends or other distributions of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders Unrestricted Subsidiaries (unless the Unrestricted Subsidiary’s principal asset is cash or Cash Equivalents). For purposes of minority interests substantially consistent determining compliance with past practice to this Section 7.06, in the extent such holder event that a Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of payments permitted by clauses (a) through (r) above, the Borrower will be entitled to classify such Restricted Payment (or portion thereof) on the date of its affiliatespayment or later reclassify (based on circumstances existing on the date of such reclassification) participates such Restricted Payment (or portion thereof) in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)manner that complies with this Section 7.06.
Appears in 1 contract
Restricted Payments. Declare The Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Lead Borrower, and to other Restricted Subsidiaries and of the Lead Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Lead Borrower (or any Parent) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Lead Borrower or any Restricted Subsidiary of the Lead Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, or warrantswarrants or other equity-based awards;
(f) the Lead Borrower and each Restricted Subsidiary may (i) pay (or may make Restricted Payments to allow any Holdco or any Parent to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Lead Borrower or any other such Parent) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any other Parent) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any Holdco or any Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any Parent) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholder’s agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Lead Borrower or any Parent) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $30,000,000 in any calendar year; provided, further, that unused amounts in any calendar year may be used in the next two succeeding years); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(i) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”; and
(ii) the Net Proceeds of key man life insurance policies received by the Lead Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that that cancellation of Indebtedness owing to the Lead Borrower or any Restricted Subsidiary from members of management of the Lead Borrower, any of the Lead Borrower’s Parents or any of the Lead Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Lead Borrower’s Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Lead Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $125,000,000 and 4.25% of Total Assets, as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(vi)) plus (y) the Cumulative Credit at such time (provided that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrowers, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Lead Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:Parent;
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such Parent attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its Parents’) corporate existence or (B) costs and expenses (including Public Company Costs) incurred by such Parent in connection with such Parent being a public company, including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
(iii) for any taxable period in which the Lead Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income or similar tax group of which a direct or indirect parents’) corporate existence;
parent of Lead Borrower is the common parent (iv) if a Holdings Election Event shall occur“Tax Group”), to finance pay federal, foreign, state and local income or similar taxes of such Tax Group that are attributable to the taxable income of the Lead Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were corporations paying taxes separately from any Investment Tax Group at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if the Lead Borrower or Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided further that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes for such taxable period or any previous taxable period ending after the date hereof and not previously taken into account for purposes of calculating the limitation in this proviso;
(iv) to finance any Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 made by the Lead Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such Parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Lead Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of any Holdco or any Parent and any payroll, social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g) and (k) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementLead Borrower or a Restricted Subsidiarity); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Holdco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementany Holdco (or any Parent) that is directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by any Holdco (or any Parent);
(gi) payments made or expected to be made by any Holdco, the Lead Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchases of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity-based awards;
(j) so long as no Default shall have occurred and be continuing dividends on the common stock or would result therefrom, the Borrower may make Restricted Payments with the proceeds common equity interests of the issuance of Qualified Equity Interests Lead Borrower or any Parent in an aggregate amount per annum not to exceed an amount equal to 6% of the Borrowernet proceeds received by (or contributed to) the Lead Borrower from any Qualified IPO (including the Initial Public Offering);
(k) if the Lead Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of the issuance of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisitions; and
(l) additional Restricted Payments so long as immediately after giving effect to such Restricted Payment, (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the declaration Total Net Leverage Ratio calculated on a Pro Forma Basis is no greater than 2.00 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Lead Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings and to other another Restricted Subsidiaries and Subsidiary that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any such other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonPerson (for the avoidance of doubt, any Restricted Subsidiary may declare and make such dividend payment or distribution paid in Equity Interests to Holdings);
(c) Holdings may make Restricted Payments in connection with the Transaction (including any amounts cash proceeds contributed to be paid under, or contemplated by, its common equity from the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement Net Cash Proceeds of any claims or actions (whether actualPermitted Equity Issuance Not Otherwise Applied, contingent or potential) so long as, with respect theretoto any such Restricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom;
(d) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions take actions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Sections 7.02(e) and (n)), 7.04, 6.18 or 7.13 (in each case, other than by reference to this Section 7.08(f7.06 (or any clause under this Section 7.06));
(e) repurchases of Equity Interests in the Borrower or Holdings and any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofParent Holding Company:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii1) the proceeds of which shall be used by Holdings Parent Holding Company to pay (or any direct to make a Restricted Payment to or indirect parent thereofInvestment in another Parent Holding Company to enable it to pay) to pay (a) such Parent Holding Company’s operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) attributable Parent Holding Company not to exceed the ratable share of the amount to which such Restricted Payment relates that is related to the ownership or operations of Holdings or the Borrower Restricted Subsidiaries or (b) to pay such fees and its Subsidiariesother amounts directly;
(iii2) for any taxable period for which Holdings or any of its Subsidiaries are members of a consolidated, combined, unitary, affiliated or similar income Tax or VAT group of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), the portion of any income Taxes (and any consolidated, combined, unitary, affiliated or similar franchise or similar Taxes imposed in lieu of such income Taxes of such Tax Group) or VAT due by the parent company of the relevant Tax Group for such taxable period, that is attributable to Holdings and/or its applicable Subsidiaries, provided that (A) Restricted Payments under this Section 7.06(e)(ii) for any taxable period shall not exceed the amount of such Taxes that Holdings and/or such Subsidiaries, as applicable, would have paid had Holdings and/or such Subsidiaries, as applicable, been a stand-alone taxpayer (or a stand-alone group) and (B) Restricted Payments under this Section 7.06(e)(ii) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Holdings or any of the Restricted Subsidiaries for such purpose;
(3) the proceeds of which shall will be used to repurchase, retire or otherwise acquire the Equity Interests of Parent Holding Company, Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to or an Investment in another Parent Holding Company or a direct or indirect equity holder thereof to enable it to repurchase, retire or otherwise acquire its Equity Interest) from directors, managers, consultants, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in each case in connection with the resignation, termination, death or disability of any such directors, managers, employees or members of management, in an aggregate amount not in excess of the greater of (x) $50,000,000 and (y) 1.0% of Consolidated Total Assets in any calendar year (with unused amounts in any calendar year being permitted to be carried over for succeeding calendar years); provided further that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key-man life insurance received by Holdings (or a Parent Holding Company), the Parent Borrower or any direct or indirect parent thereofother Restricted Subsidiary (solely with respect to the calendar year in which such proceeds are received and without limiting any carry-over thereof permitted above), plus (B) to pay franchise taxes the extent contributed in cash to the common equity of Holdings or any Restricted Subsidiary and other feesnot theretofore utilized to make a Restricted Payment under this clause (e)(iv), taxes and expenses required the Net Cash Proceeds from the sale of Equity Interests of Holdings or any Parent Holding Company, in each case to maintain its (members of management, managers, directors or consultants of Holdings or any of its Subsidiaries or any Parent Holding Company that occurs after the Closing Date (provided that in no event shall any such contributed amounts increase the Cumulative Credit) plus (C) the amount of any cash bonuses or other cash compensation otherwise payable to any future, present or former director, manager, employee, member of management or consultant of Holdings or a direct or indirect parents’) corporate existenceequity holder thereof, Parent Borrower or any other Restricted Subsidiary that are foregone in return for the receipt of Equity Interests of Holdings or a direct or indirect equity holder thereof, Parent Borrower or any other Restricted Subsidiary pursuant to a deferred compensation plan of such equity;
(iv4) the proceeds of which are applied to the purchase or other acquisition by any Parent Holding Company of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or more than 50% of the Equity Interests in a Person that; provided that if such purchase or other acquisition had been made by Holdings or any Restricted Subsidiary, it would have constituted a Holdings Election Event shall occur, to finance any Investment Permitted Acquisition permitted to be made pursuant to Section 7.027.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings any Parent Holding Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary (other than (i) with respect to such assets, to any Foreign Subsidiaries of the U.S. Borrower and (ii) to the extent such Equity Interests constitute Foreign Subsidiaries, to the U.S. Borrower or any of its Restricted Subsidiaries Subsidiaries) or (2) the merger (to the extent permitted in Section 7.04) into any Restricted Subsidiary (other than the U.S. Borrower or any of its Subsidiaries to the extent constituting a Foreign Subsidiary) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchaser or other acquisition;
(v5) if repurchases of Equity Interests of a Holdings Election Event shall occur, Parent Holding Company deemed to occur upon the non-cash exercise of stock options and warrants or similar equity incentive awards;
(6) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) a Parent Holding Company to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof Parent Holding Company to pay) , other than to Affiliates of Holdings, a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings or offering or debt offering issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement, in each case not to exceed the ratable share of the amount to which such Restricted Payment relates that is directly related to the operations of Holdings and the Restricted Subsidiaries;
(g7) the Borrower may proceeds of which shall be used to pay for customary salary, bonus and other benefits payable to officers, employees, consultants and independent contractors of any Parent Holding Company to the repurchaseextent such salaries, retirement bonuses and other benefits are attributable to the ownership or other acquisition operation of Holdings or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; providedand
(f) in addition to the foregoing Restricted Payments, however, that the Borrowers may make additional Restricted Payments to a Parent Holding Company in an aggregate amount not to exceed (1) the greater of $400,000,000 and 6.0% of Consolidated Total Assets (less the aggregate amount of payments made all prepayments, redemptions, purchases, defeasements and other satisfaction prior to the scheduled maturity of Junior Financing and Permitted Refinancings thereof pursuant to Section 7.13(iv)) plus (2) an amount (which shall not be less than zero) equal to the portion, if any, of the Cumulative Credit on the date of such election that the applicable Borrower elects to apply to this clause (f) does not exceed Section 7.06(f)(2), such election to be specified in any fiscal year a written notice of a Responsible Officer of the Borrower $15,000,000 Representative calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that, in the case of this Section 7.06(f)(2), (which shall increase A) immediately before and immediately after giving Pro Forma Effect to $20,000,000 subsequent to the consummation any such Restricted Payment, no Event of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromand (B) immediately after giving effect to any such Restricted Payment, the Borrower Parties would be permitted to Incur at least $1.00 of unsecured Permitted Additional Debt;
(g) [reserved];
(h) Holdings and any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional shares in connection with any dividend, redemptions, purchases, defeasances and other payments in respect split or combination of Junior Financings made pursuant to Section 7.13(a)(ivits Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion;
(i) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 7.06;
(j) the Borrower Parties may make Restricted Payments permitted by this clause (h), to a Parent Holding Company so that Parent Holding Company may make Restricted Payments to its equity holders or the equity holders of any other Parent Holding Company in an aggregate amount not to exceed exceeding the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day Net Cash Proceeds received by the Borrower Parties from any public offering of common stock or contributed to the Borrower Parties by any direct or indirect parent of any Test Period being less than 5.0 to 1.0) Borrower Party from any public offering of common stock and (B) the Cumulative Growth Amountan aggregate amount per annum not to exceed 7.0% of Market Capitalization;
(ik) so long as no Default shall have occurred Holdings and be continuing or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an amount equal to any Taxes payable, including, but not limited to, withholding or similar Taxes payable or expected to be payable, in connection with any payments to any present or former employee, director, officer, manager, consultant or independent contractor (together or their respective Affiliates, estates or immediate family members) or in connection with the aggregate amount any repurchases, of Investments made pursuant to Section 7.02(v)) not to exceed any reduction Equity Interests in taxes realized by the Borrower and the Restricted Subsidiaries in the form consideration of refunds or deductions realized such payments including deemed repurchases in connection with the Transactionsexercise of stock options or grant, vesting or delivery of any Equity Interests;
(jl) additional Restricted Payments so long as no Default shall have occurred and be continuing or would result therefromafter giving Pro Forma Effect to such Restricted Payments, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromTotal Net Leverage Ratio does not exceed 3.00:1.00; and
(lm) the declaration and payment of dividends and or distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) of Holdings; provided, however, that (A) for the most recently ended Test Period, at the Borrowers’ option, either (I) the Fixed Charge Coverage Ratio of Holdings and its Restricted Subsidiaries is 2.00 to 1.00 or greater or (ii) the Total Net Leverage Ratio does not exceed 5.50 to 1.00 and (B) the aggregate amount of dividends declared and paid pursuant to this clause (m) does not exceed the Net Cash Proceeds actually received by Holdings from the sale of Designated Preferred Stock; provided, further, that for purposes of calculating the Total Net Leverage Ratio for purposes of compliance with past practice clause (ii) above, Consolidated Funded Indebtedness shall include the aggregate amount of all outstanding Designated Preferred Stock of Holdings, with the amount of such Designated Preferred Stock equal to the extent greater of its voluntary or involuntary liquidation preference and Maximum Fixed Repurchase Price, in each case determined on a consolidated basis in accordance with GAAP, based on internal financial statements that are available immediately preceding such holder (or its affiliates) participates in the Receivables Management Business (including as date and calculated on a lender or financier under any financing provided to a Receivables Management Subsidiary)Pro Forma Basis.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other any Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesClosing Date, including any payment the Closing Distribution, to holders of Equity Interests of consummate the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 7.02, 7.04, 7.08(c), 7.08(d), 7.08(e), 7.08(g), 7.08(h) or 7.08 other than Section 7.08(f7.08(i);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower may pay (or make Restricted Payments to allow any direct or indirect parent company thereof to pay) for the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Company (or of any such direct or indirect parent of the Company) held by any present or former employee, director, officer or consultant (or any spouses, former spouses, executors, successors, administrators, heirs, legatees, estates or immediate family members) of the Company (or any direct or indirect parent company thereof) or any of its Subsidiaries, so long as such repurchase, redemption or other acquisition or retirement is pursuant to, and its Restricted Subsidiaries in accordance with the terms of, any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 7.06(f) do not exceed in any calendar year $50,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $100,000,000 in any calendar year);
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment the Company or to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability (including additions to tax, penalties and interest with respect thereto) to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for return is filed by the relevant jurisdiction of Holdings Company (or any such direct or indirect parent thereofof the Company) attributable to Holdings, that includes the Borrower or any of its Subsidiaries, to the extent that such tax liability (including additions to tax, penalties and interest with respect thereto) does not exceed the lesser of (A) the taxes that would have been payable by the Borrower, the Restricted Subsidiaries determined and/or their respective Subsidiaries, as a stand-alone group and (B) the actual tax liability (including additions to tax, penalties and interest with respect thereto) of the Company’s consolidated, combined, unitary or affiliated group (or, if the Borrower Company is not the parent of the actual group, the taxes that would have been paid by the Company and its Subsidiaries filed separatelyas a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower, the Restricted Subsidiaries or their respective Subsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay the Company’s operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Company’s Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses (including additions to tax, penalties and interest with respect to the foregoing) required to maintain its the Company’s (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, distributions to finance the Company to facilitate an Investment by the Borrower or any Investment Restricted Subsidiary that is permitted to be made pursuant to under Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) cause all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its any Restricted Subsidiaries or Subsidiary, (2) cause the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its any Restricted Subsidiaries in order to consummate such Permitted Acquisition, Subsidiary and in each case, the Borrower shall cause the requirements of (3) comply with Section 6.11 to be complied with, within the time periods specified therein (and Section 6.13 to the extent required by the Collateral and Guarantee Requirement); andapplicable;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof of the Company to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(gvi) the Borrower may proceeds of which shall be used to pay for customary salary, bonus and other benefits payable to officers and employees of the repurchaseCompany or any direct or indirect parent of the Company to the extent that such salaries, retirement bonuses and other benefits are attributable to the ownership or other acquisition or retirement for value of Equity Interests operation of the Borrower and the Restricted Subsidiaries;
(vii) the proceeds of which shall be used to pay regularly-scheduled principal and interest on, or any mandatory redemption, repurchase or other retirement of, any of the Existing Retained Indebtedness, it being understood that Restricted Payments may be made to the Company with the proceeds of (A) Incremental Term Loans and (B) the proceeds of Indebtedness permitted under Section 7.03(r) and Section 7.03(t), in each case to finance the redemption, repurchase or other retirement of the Existing Retained Indebtedness; and
(viii) the proceeds of which are used to make payments by any futurethe Company required to be made under the Tax Sharing Agreement, present or former employee or director dated as of July 17, 2006, by and among the Company and Windstream Corporation (as successor in interest to Valor Communications Group, Inc.), as such agreement is in effect on the Closing Date;
(h) the Borrower or any of its the Restricted Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement may (including any stock subscription or shareholder agreementa) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) pay cash in lieu of Restricted Payments permitted by this clause (h)fractional Equity Interests in connection with any dividend, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of split or combination thereof or any Test Period being less than 5.0 to 1.0) Permitted Acquisition and (Bb) the Cumulative Growth Amounthonor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) so long as the payment of any dividend or distribution within sixty days after the date of declaration thereof, if on the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactionswas continuing;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with declaration and payment of dividends on the proceeds common stock of the issuance Company (or any of Qualified Equity Interests its direct or indirect parent companies) following the first public offering of the Company common stock (or the common stock of any of its direct or indirect parents after the Closing Date), of up to 6.0% per annum of the net proceeds received by or contributed to the Company (or such parent of the Company) in or from any such public offering (and, in each case, further contributed to or received by the Borrower), other than public offerings with respect to the Company’s common stock (or common stock of any of the Company’s direct and indirect parent companies) registered on Form S–4 or Form S–8;
(k) if payments made by the Borrower shall become or any of the Subsidiary Restricted Subsidiaries in respect of Holdingswithholding or similar Taxes payable by any of their respective present or former employees, directors, managers or consultants (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of their respective Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(l) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to and the Administrative Agent stating that the Borrower will Restricted Subsidiaries may make such dividends and distributions (the “additional Restricted Payments Interest Expense Election”) in an aggregate amount, together with the aggregate amount 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 Indebtedness specified in sum of (x) $500,000,000, (y) to the extent that the Senior Secured Leverage Ratio Test is met after giving effect to the making of such notice only Restricted Payment, the Available Amount at such time and (z) the Available Equity Amount; and
(m) beginning on the fifth anniversary of the date of issuance of any Qualified Holding Company Debt so long as no Default shall have has occurred and be continuing is continuing, the Borrower or would result therefrom; and
a Restricted Subsidiary may pay dividends to the Company so long as (lA) the declaration proceeds thereof are promptly applied to fund cash interest payments or “AHYDO catch-up” payments on Qualified Holding Company Debt and (B) the Senior Secured Leverage Ratio for the most recently ended Test Period would not be greater than 4.75 to 1.00 (calculated on a Pro Forma Basis after giving effect to the payment of dividends such dividends). Notwithstanding anything to the contrary contained in Article 7 (including Section 7.02 and distributions this Section 7.06), the Company and the Borrower shall not, and shall not permit any of their respective Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Company’s Equity Interests or purchase or otherwise acquire for cash any Equity Interests of the Company or any Receivables Management Subsidiary direct or indirect parent of the Company, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Equity Interests of the Company or any direct or indirect parent of the Company for cash from the Sponsors, or guarantee any Indebtedness of any Affiliate of the Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Equity Interests to holders or from the Sponsors, in each case by means of minority interests substantially consistent with past practice utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 7.02(n), (o) and (p), Sections 7.06(l) and (i) and Section 7.12(a), unless at the time and after giving effect to such payment, the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Total Leverage Ratio Test shall be satisfied.
Appears in 1 contract
Sources: Credit Agreement (Alltel Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) : each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person;
, Section 7.06 or Section 7.08 (c) or to build the Available Amount or Excluded Contribution Amount)); Restricted Payments made on or after the Closing Date in connection with the Transaction (Transactions, including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) associated therewith; to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(ei) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
warrants and (fii) issuances of Equity Interests upon the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct exercise or indirect parent thereof:
(i) conversion of the proceeds of which will be used to pay Warrants in accordance with the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, Warrant Agreement; the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessRestricted Subsidiary may, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other feesgood faith, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of its Equity Interests of the Borrower held by any future, present or former employee employee, director, manager, officer or director consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee employee, management, director or director manager equity plan, employee employee, management, director or director manager stock option plan or any other employee employee, management, director or director manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, director, manager, officer or director consultant of the Borrower or any Subsidiary; provided that such payments do not to exceed $7,750,000 in the aggregate in any calendar year, provided that any unused portion of its Subsidiaries; providedthe preceding basket for any calendar year may be carried forward to succeeding calendar years, however, that so long as the aggregate amount of payments all Restricted Payments made pursuant to this clause (fSection 7.06(f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which after giving effect to such carry forward) shall increase to not exceed $40,000,000 subsequent to 15,500,000 in the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, aggregate; [reserved]; the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an aggregate amountpay any dividend or distribution within 60 days after the date of declaration thereof, together if at the date of declaration such payment would have complied with the aggregate amount provisions of this Agreement (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made it being understood that a distribution pursuant to this Section 7.13(a)(iv7.06(h) and shall be deemed to have utilized capacity under such other provision of this Agreement); the Borrower or any Restricted Subsidiary may (iia) loans and advances made pursuant to Section 7.02(m) pay cash in lieu of Restricted Payments permitted by this clause (h)fractional Equity Interests in connection with any dividend, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of split or combination thereof or any Test Period being less than 5.0 to 1.0) Permitted Acquisition and (Bb) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred honor any conversion request by a holder of convertible Indebtedness and be continuing or would result therefrom, 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; the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the greater of (x) $68,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower and for the most recently ended Test Period calculated on a Pro Forma Basis; provided that, at the time of any such Restricted Subsidiaries in the form Payment, no Event of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed, without duplication, (li) the declaration Available Amount and/or (ii) the Excluded Contribution Amount; provided that (x) at the time of any such Restricted Payment in reliance on clause (b) of the definition of “Available Amount,” no Event of Default shall have occurred and payment be continuing or would result therefrom and (y) at the time of dividends and distributions any such Restricted Payment in reliance on the definition of “Excluded Contribution Amount,” no Specified Event of Default shall have occurred and be continuing or would result therefrom; [reserved]; the distribution, by dividend or otherwise, of Equity Interests or Indebtedness owed to the Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management an Unrestricted Subsidiary), in each case, so long as the primary assets of such Unrestricted Subsidiary are not cash or cash equivalents; the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 2.50:1.00; and the Borrower or any Restricted Subsidiary may pay any dividend or distribution on any Disqualified Equity Interests incurred in accordance with Section 7.03.
Appears in 1 contract
Sources: Credit Agreement (Holley Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) the Borrower and each Restricted Subsidiary may make Restricted Payments to the Parents, the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Parents may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parents may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c) Restricted Payments made on or after the Closing Date for fees and expenses in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Parents, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) repurchases of Equity Interests in the ordinary course of business in the Parents (or any direct or indirect parent thereof), the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) any Parent, the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of any Parent (or any direct or indirect parent of such Parent) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of any Parent (or any direct or indirect parent thereof), the Borrower or any Subsidiary; provided that such payments do not to exceed $15,625,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $31,250,000; provided, further, that cancellation of Indebtedness owing to any Parent (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of such Parent, any of such Parent’s direct or indirect parent companies or any of the Borrower or any Restricted Subsidiary in connection with a repurchase of Equity Interests of any of such Parent’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) each Parent, the Borrower and its the Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Borrower or such Parent:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelymake Permitted Tax Distributions;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including (v) administrative, legal, accounting and similar expenses provided by third parties, (w) trustee, directors, managers and general partner fees, (x) any judgments, settlements, penalties, fines or other costs and expenses in respect of any claim, litigation or proceeding, (y) fees and expenses (including any underwriters discounts and commissions) related to any investment or acquisition transaction (whether or not successful) and (z) payments in respect of indebtedness and equity securities of any direct or indirect holder of Equity Interests in such Parent to the extent the proceeds are used or will be used to pay expenses or other obligations described in this Section 7.06(g), ) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of such Parent and its Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) of such Parent attributable to the direct or indirect ownership or operations of such Parent and its Subsidiaries) and fees and expenses otherwise due and payable by any Parent, the Borrower or any Restricted Subsidiary and permitted to be paid by such Parents, the Borrower and its Subsidiariessuch Restricted Subsidiaries under this Agreement not to exceed $12,500,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existenceexistence (including any costs or expenses associated with being a public company listed on a national securities exchange);
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to a Parent, the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into a Parent, the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.10; provided that in the case of a Restricted Payment made by a Loan Party, within such property shall not build the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andAvailable Amount;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement Agreement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant related to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO; and
(vi) the proceeds of which shall be used to pay customary salary, with unused amounts in bonus and other benefits payable to officers and employees of any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect direct or indirect parent company or partner of any Parent to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent extent such salaries, bonuses and other benefits are attributable to the consummation ownership or operation of a Qualifying IPO)the Parents, the Borrower and the Restricted Subsidiaries;
(h) so long as any Parent, the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) any Parent, the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) any Parent, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the greater of (x) $31,250,000 and (y) 25% of Consolidated EBITDA of the Parents, the Borrower and the Restricted Subsidiaries for the most recently ended Test Period calculated on a Pro Forma Basis;
(k) any Parent, the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed (i) the Available Amount (provided that at the time of any such Restricted Payment (x) in reliance on clause (b) of the definition of “Available Amount”, no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (iiy) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromParents, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in as of the form end of refunds or deductions realized in connection with the Transactionsmost recently ended Test Period, on a Pro Forma Basis, would be no greater than 5.25:1.00) and/or (ii) the Excluded Contribution Amount;
(jl) so long as no Default shall have occurred and be continuing or would result therefromafter a Qualifying IPO, the Borrower may make (i) any Restricted Payments with Payment the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary, including Public Company Costs and (ii) Restricted Payments not to exceed up to 6.00% per annum of the payment of interest and fees on Indebtedness of Holdings permitted Net Cash Proceeds received by Section 7.16; provided(or contributed to) the Parents, that the Borrower shall have elected and the Restricted Subsidiaries from such Qualifying IPO;
(m) [reserved];
(n) [reserved];
(o) the Permitted Distribution Business Disposition;
(p) Restricted Payments in an amount not to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that exceed $15,000,000 annually;
(q) any Parent, the Borrower will or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such dividends Restricted Payment, (i) no Default or Event of Default has occurred and distributions is continuing and (ii) the “Restricted Payments Interest Expense Election”) in respect Total Leverage Ratio of the Indebtedness specified in such notice only so long Parents, the Borrower and the Restricted Subsidiaries as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no Default shall have occurred and be continuing or would result therefromgreater than 3.75:1.00; and
(lr) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Closing Date Restricted Payment.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (Utz Quality Foods, LLC)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Borrower) or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent of the Borrower) by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, consultant or distributor of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause the
(1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;
(gh) the Borrower or any of the Restricted Subsidiaries may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S–4 or Form S–8;
(k) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.12(a)(i)(D), not to exceed the sum of (Ai) the greater of $75,000,000 300,000,000 and 2.75% of Total Assets, in each case determined at the time of such Restricted Payment, and (ii) the Available Amount at such amount to be increased to $100,000,000 upon time; and
(m) beginning on the Total Leverage Ratio as fifth anniversary of the last day date of issuance of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) Qualified Holding Company Debt so long as no Default shall have has occurred and be continuing or would result therefromis continuing, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant pay dividends to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) Holdings so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of thereof are promptly applied to fund cash interest payments or “AHYDO catch-up” payments on Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of HoldingsHolding Company Debt, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used on a Pro Forma Basis after giving effect to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; providedsuch dividends, that the Borrower shall have elected Senior Secured Leverage Ratio for the most recently ended Test Period would not be greater than 4.5 to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)1.0.
Appears in 1 contract
Sources: Credit Agreement (Biolectron, Inc.)
Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to Holdings or other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly-Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Holdings and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) Holdings may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided, any terms and provisions material to the Borrower interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and each Restricted Subsidiary (ii) Holdings, its or any of its direct or indirect parent’s may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonInterests;
(c) Restricted Payments in connection with the Transaction (including any amounts made to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.03(k), Section 7.04 or 7.08 other than Section 7.08(fSections 7.07(e) and (n), and in each case, transactions in connection therewith;
(e) repurchases of Equity Interests in the Borrower ordinary course of business in Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options options, warrants, settlement or warrants vesting if such Equity Interests represent a portion of the exercise price of such options options, warrants, settlement or warrantsvesting;
(f) the Borrower and its Holdings or any Restricted Subsidiaries may Subsidiary may, in good faith, pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
(ithereof to pay) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, advisor, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Holdings or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Holdings (or any direct or indirect parent thereof) attributable or any Subsidiary; provided, such payments do not to Holdingsexceed in any calendar year the sum of (i) the greater of (x) $5,000,000 and (y) 10% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period at the time of such payment (provided, any unused portion of this clause (i) for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f)(i) in any calendar year (after giving effect to such carry forward) shall not exceed the greater of (x) $7,500,000 and (y) 15% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period) plus (ii) the cash proceeds of keyman life insurance policies received by Holdings or a Restricted Subsidiary after the Closing Date plus (iii) the amount of net cash proceeds from the sale of Equity Interests in Holdings and contributed to the Lead Borrower for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by an employee, director, advisor, manager, officer or consultant to the extent not otherwise used under this Agreement or applied to the Available Amount; provided, cancellation of Indebtedness owing to Holdings or any of its Subsidiaries determined as if the Borrower from members of management of Holdings or any of its Restricted Subsidiaries in connection with a repurchase of Equity Interests of Holdings will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) Holdings and its Subsidiaries filed separately;any Restricted Subsidiary may make Restricted Payments to any direct or indirect holder of an Equity Interest in Holdings:
(i) [Reserved].
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar fees and expenses provided by third parties)parties as well as trustee, which directors, managers and general partner fees) that are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of Holdings and its Subsidiaries (including any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any attributable to the direct or indirect parent thereof) attributable to the ownership or operations of the Borrower Holdings and its Subsidiaries) and fees and expenses otherwise due and payable by Holdings or any Restricted Subsidiary and permitted to be paid by Holdings or such Restricted Subsidiary under this Agreement not to exceed $1,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other feesfees and expenses, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that provided, (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to a Borrower or a Restricted Subsidiary (provided, any such amounts under this clause (iv)(B) shall not increase the Available Amount or otherwise increase any basket under this Agreement that builds by amounts contributed to the Lead Borrower or its any Restricted Subsidiaries Subsidiary) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.10;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of any Borrower and its Restricted Subsidiaries;
(gh) payments in the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value form of Equity Interests of Holdings (other than Disqualified Equity Interests and to the Borrower extent not otherwise used under this Agreement or applied to the Available Amount);
(i) Restricted Payments made to finance expenses properly incurred in connection with the issuance or incurrence of a refinancing of Indebtedness permitted under this Agreement;
(j) so long as no Event of Default is continuing or would result therefrom, Restricted Payments made from the net cash proceeds received by any future, present Holdings after the Closing Date pursuant to contributions to its common equity capital or former employee issuances of Equity Interests (other than Disqualified Equity Interests) of Holdings (other than received as a Cure Amount and to the extent not otherwise used under this Agreement or director of applied to the Borrower Available Amount) that are used substantially contemporaneously to make such Restricted Payment;
(k) Holdings or any Restricted Subsidiary may pay any dividend or distribution within sixty (60) days after the date of its Subsidiaries pursuant to any employee or director equity plandeclaration thereof, employee or director stock option plan if at the date of declaration such payment would have complied with the provisions of this Agreement;
(l) Holdings or any other employee Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or director benefit plan combination thereof or any agreement Permitted Acquisition and (including b) honor any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(m) so long as no Event of Default is continuing or director of the Borrower would result therefrom, Holdings or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed at the time of its Subsidiaries; providedsuch Restricted Payment the greater of (i) (x) $14,000,000 per annum so long as the Total Leverage Ratio, howeverafter giving pro forma effect to such Restricted Payment, that is less than or equal to 6.50:1.00 but greater than 5.00:1.00 or (y) $21,000,000 per annum so long as the Total Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or equal to 5.00:1.00, in each case, minus the aggregate amount of payments Restricted Payments made prior to such date in reliance on this clause (m), plus (ii) additional Restricted Payments so long as the Total Leverage Ratio, after giving pro forma effect to such Restricted Payment is less than 4.00:1.00; provided that, Holdings shall be required to pay (or cause to be paid) all Exit Payments set forth in Section 2.09(c), whether or not a Revolving Exit Payment Trigger or Term Loan Payment Trigger has occurred, prior to the making of any Restricted Payment pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOm)(ii);; and
(hn) so long as Holdings or any Restricted Subsidiary may make additional Restricted Payments in an individual amount not to exceed the then Available Amount; provided, (i) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) therefrom and (ii) loans and advances made at the time of such Restricted Payment utilizing amounts pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h)a) of the definition of “Available Amount” and after giving effect thereto and to the incurrence of any Indebtedness in connection therewith, not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day end of any the most recently ended Test Period being at the time of such Restricted Payment, on a Pro Forma Basis, would be equal to or less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)4.00:1.00.
Appears in 1 contract
Sources: First Lien Credit Agreement (ONESPAWORLD HOLDINGS LTD)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Wholly Owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and each Restricted Subsidiary provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parent Borrower may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests (to the extent not utilized in connection with any other than Disqualified Equity Interests not otherwise transactions permitted by pursuant to Section 7.02, Section 7.03) of such Person, Section 7.06 or Section 7.08);
(c) Restricted Payments made on or after the Effective Date in connection with the Transaction (Transactions, including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoassociated therewith;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f)7.07;
(e) (i) repurchases of Equity Interests in the ordinary course of business in the Parent Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
warrants and (fii) payments made or expected to be made by the Parent Borrower and its or any Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction Subsidiary in respect of consolidatedwithholding or similar Taxes payable or expected to be payable by any future, combinedpresent or former employee, unitary director, officer, manager, consultant or affiliated returns independent contractor of the Parent Borrower or any Restricted Subsidiary (or their respective Affiliates, management investment vehicles, estates, descendants, family members, spouses and former spouses and any trusts, limited liability companies, corporations, partnerships or other entities for the relevant jurisdiction benefit of, or controlled by, any of Holdings the foregoing) in connection with the exercise of stock options or the grant, vesting or delivery of Equity Interests (including, without limitation, restricted stock units) of the Parent Borrower (or any direct or indirect parent thereof) attributable to Holdings, company of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyParent Borrower);
(iif) [reserved];
(g) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments with (a) proceeds of which shall be used received by Holdings or made to the Parent Borrower (or any direct or indirect parent thereofthereof and contributed by such parent to the Parent Borrower) to pay operating expenses incurred in from any capital contributions or issuance of Qualified Equity Interests (or issuance of debt securities by the ordinary course Parent Borrower or any 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 its Restricted Subsidiaries that have been converted into or exchanged for Qualified Equity Interests of the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (Parent Borrower or any direct or indirect parent thereof), (b) attributable to proceeds received by the Parent Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any JV Entity or operations of the Borrower and its Subsidiaries;
Unrestricted Subsidiary, and/or (iiic) the proceeds of which shall be used any cash dividends and/or other cash distributions received by Holdings (the Parent Borrower or any direct Restricted Subsidiary from any JV Entity or indirect parent thereof) to pay franchise taxes and other feesUnrestricted Subsidiaries, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, following the Borrower shall cause the requirements of Effective Date and, in each case, other than any such amounts that have been utilized to make Investments pursuant to Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v7.02(n) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries payments pursuant to Section 7.08(a)(iv) (provided that (x) at the time of any employee or director equity plansuch prepayment, employee or director stock option plan or any redemption, purchase, defeasance and other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director payment, no Specified Event of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, therefrom and (y) on a Pro Forma Basis the Parent Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made would be able to incur $1.00 pursuant to Section 7.13(a)(iv7.03(r)(i));
(h) and the Parent Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (ii) loans and advances made it being understood that a distribution pursuant to this Section 7.02(m7.06(h) in lieu shall be deemed to have utilized capacity under such other provision of Restricted Payments permitted by this clause (hAgreement), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing the Parent Borrower or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments (a) pay cash in an amount (together with the aggregate amount lieu of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized fractional Equity Interests in connection with the Transactionsany dividend, split or combination thereof, or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) so long as no Specified Event of Default shall have has occurred and be continuing or would result therefromis continuing, the Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments with in an amount not to exceed, at the proceeds time of such Restricted Payment, the greater of (x) $220,500,000 and (y) 35% of Consolidated EBITDA of the issuance of Qualified Equity Interests of Parent Borrower and its Restricted Subsidiaries for the Borrowermost recently ended Test Period calculated on a Pro Forma Basis;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Specified Event of Default shall have has occurred and be continuing is continuing, the Parent Borrower or would result therefrom, dividends and distributions which will be used any Restricted Subsidiary may repurchase Equity Interests pursuant to fund any stock repurchase or similar agreement (including any accelerated share repurchase or other structured share repurchase agreement) approved by the payment board of interest and fees on Indebtedness directors (or appropriate equivalent committee thereof) of Holdings permitted by Section 7.16the Parent Borrower; provided, that the Borrower aggregate amount of such payments shall have elected to include such not exceed the greater of (x) $315,000,000 and (y) 50% of Consolidated EBITDA in any fiscal year (with unused amounts in its Consolidated Interest Expense by delivering an irrevocable written notice any fiscal year being carried over to the Administrative Agent stating that the Borrower will make such dividends and distributions immediately succeeding fiscal year);
(the “Restricted Payments Interest Expense Election”l) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom[reserved];
(m) [reserved]; and
(ln) the declaration Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such Restricted Payment, (i) no Event of Default has occurred and payment is continuing and (ii) the Total Leverage Ratio of dividends and distributions the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than the Equity Interests of Total Leverage Ratio that is 0.50:1.00 lower than the Total Leverage Ratio required under Section 7.11(a) (without giving effect to any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management SubsidiaryLeverage Increase Period thereunder).
Appears in 1 contract
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company, and to other Restricted Subsidiaries and of the Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.003.75:1.00;
(e) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, director, member, partner, independent contractor or consultant stock option plan or benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed the greater of (x) $37,500,000100,000,000 and (y) 1.0% of Total Assets in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of the greater of (x) $75,000,000195,000,000 and (y) 2.0% of Total Assets in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company or any Subsidiary Guarantor, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors, members, partners, independent contractors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of Equity Interests of the Company or any of its direct or indirect parent companies pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) through (iii) of this Section 7.06(g);
(h) the Company may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i), when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (a) $330,000,000 and Holdings (b) 3.50% of Total Assets plus (ii) the Cumulative Credit on such date; provided that, in the case of clause (ii), with respect to usage of any portion of the Builder Basket, no Event of Default under Sections 8.01(a) or (f) has occurred and is continuing (or would result therefrom);
(i) the Company may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay the its operating or organizational costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Company and its Restricted Subsidiaries, any costs, expenses and liabilities incurred in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Company and its SubsidiariesRestricted Subsidiaries and listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.11, within (C) such parent company and its Affiliates (other than the time periods specified therein (Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent required the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall be deemed to be made by the Collateral and Guarantee RequirementCompany or such Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p); and);
(v) if a the proceeds of which shall be used to pay customary salary, bonus, severance, indemnity and other benefits payable to future, present or former officers, employees, managers, members, partners independent contractors or consultants of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement by Holdings (or any direct or indirect parent thereof), whether or not successful, that is directly attributable to the operations of the Company and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for Company or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon exercise or retirement for value vesting of Equity Interests of the Borrower by any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant of the Borrower Company or any Restricted Subsidiaries and any repurchases of its Subsidiaries pursuant Equity Interests deemed to any employee occur upon the exercise or director equity planvesting of stock options, employee warrants or director the issuance of restricted stock option plan units or any other employee or director benefit plan or any agreement (including any similar stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)based awards;
(hk) so long as no Default shall have occurred and be continuing the Company or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptionsdistribution, purchasessplit, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day of any Test Period being less net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than 5.0 to 1.0a public sale constituting an Excluded Contribution) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 6.0% of Market Capitalization;
(m) distributions or payments of Securitization Fees, sales, contributions, distributions and other transfers of Securitization Assets and purchases of Securitization Assets, in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized each case in connection with the Transactionsa Qualified Securitization Financing;
(jn) so long payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as no Default shall have occurred a result of, exercise of appraisal rights and be continuing the settlement of any claims or would result therefromaction (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02;
(o) the Borrower may make Restricted Payments with the proceeds distribution, by dividend or otherwise, of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the BorrowerCompany or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, Restricted Payments that the Borrower shall have elected to include such amounts are made (i) in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that amount of Excluded Contributions previously received since the Borrower will make such dividends and distributions Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business (including as event that a lender Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Company may, in its sole discretion, classify or financier under later divide, classify or reclassify all or a portion of such Restricted Payment or any financing provided portion thereof in a manner that complies with this Section 7.06 and will only be required to a Receivables Management Subsidiary)include the amount and type of such Restricted Payment in one or more of the above clauses.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to (i) the Borrower and to other Restricted Subsidiaries and (ii) each in addition to the Restricted Payments described in clause (i), in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary (based on their such owner’s relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such PersonPerson to (i) the Borrower and other Restricted Subsidiaries and (ii) in addition to the Restricted Payments described in clause (i), in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary (based on such other owner’s relative ownership interests of the relevant class of Equity Interests);
(c) Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in connection respect of working capital adjustments or purchase price adjustments pursuant to the Acquisition Agreement, any Permitted Acquisition or other permitted Investments and (iii) in order to satisfy indemnity and other similar obligations under the Acquisition Agreement, any Permitted Acquisition or other permitted Investments, in each case, with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect respect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower (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 7.04 7.02 (other than 7.02(e) and 7.02(m)), 7.04, 7.05 (other than 7.05(e)(iv) and 7.05(g)) or 7.08 (other than Section 7.08(f));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its each Restricted Subsidiaries Subsidiary may (i) pay (or make Restricted Payments to Holdings, Holdings (and Holdings may apply the proceeds of such Restricted Payment to make a corresponding Restricted Payment to any direct or indirect parent of Holdings to permit such parent to pay)) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower, Holdings or any other such direct or indirect parent of Holdings) held by any future, present or former manager, officer, director, consultant or employee (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof:
) or any of its Subsidiaries or (iii) make Restricted Payments in the form of distributions to Holdings (and Holdings may apply the proceeds of which will be used such Restricted Payment to make a Restricted Payment to any direct or indirect parent of Holdings to permit such parent to pay) to pay principal or interest on promissory notes that were issued to any future, present or former manager, officer, director, consultant or employee (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the tax liability to each relevant jurisdiction foregoing) of such Restricted Subsidiary (or the Borrower, Holdings or any other direct or indirect parent of Holdings) in respect lieu of consolidated, combined, unitary or affiliated returns cash payments for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any manager, officer, director, consultant or employee of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this Section 7.06(f) (net of proceeds received by Holdings or any direct or indirect parent thereofof Holdings subsequent to the Closing Date in connection with resales of any Equity Interests so purchased pursuant to this clause (f)) attributable shall not exceed the greater of (x) $15,000,000 and (y) 10.0% of Trailing Four Quarter Consolidated EBITDA in any calendar (with unused amounts in any calendar year being carried over to Holdingssucceeding calendar years); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (c) and (d) of the definition of “Cumulative Credit”;
(B) the net proceeds of key man life insurance policies received by the Borrower or any Restricted Subsidiary less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and
(C) the amount of any cash bonuses otherwise payable to employees, officers, directors, managers, consultants or independent contractors of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Restricted Subsidiaries, Holdings (or any direct or indirect parent thereofof Holdings that are foregone in return for the receipt of Equity Interests; provided, further, that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments (and Holdings may apply the proceeds of such Restricted Payments to make Restricted Payments) in an aggregate amount not to exceed, an amount equal to (A) the greater of (x) $75,000,000 and (y) 50.0% of Trailing Four Quarter Consolidated EBITDA (it being understood that any amount utilized under this clause (g)(A) to make Restricted Payments shall result in a reduction in the availability to make Investments under Section 7.02(n)(A) and the availability to make repayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings then permitted to be made in reliance on Section 7.13(a)(v)(A)) plus (B) the Cumulative Credit at the time such Restricted Payment is made; provided, that with respect to any Restricted Payment made pursuant to this clause (B), solely to the extent such payments are made in reliance on clause (b) of the definition of “Cumulative Credit”, (i) no Event of Default has occurred and is continuing or would result therefrom at the time such Restricted Payment is made and (ii) either (A) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is at least 2.00 to 1.00, or (B) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) does not exceed 5.50 to 1.00;
(h) Borrower may make Restricted Payments to Holdings (and Holdings may make Restricted Payments to any direct or indirect parent of Holdings):
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and any indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes Taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income or similar 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 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 any Restricted Subsidiary for the purposes of paying such consolidated, combined or similar income Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02Sections 7.02 and 7.08 if such parent were subject to such Sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries (which may be required to be Loan Parties) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its any Restricted Subsidiaries Subsidiary in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied withand (C) such contribution shall constitute an Investment by the Borrower or the applicable Restricted Subsidiaries, within as the time periods specified therein (case may be, at the date of such contribution or merger, as applicable, in an amount equal to the extent required by the Collateral and Guarantee Requirement); andamount of such Restricted Payment;
(v) if the proceeds of which (A) shall be used to pay customary salary, bonus, severance and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08(c), (e), (i), (k), and (p) (assuming the Borrower or a Holdings Election Event shall occur, Restricted Subsidiary were to make the payment 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 shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof);
(gvii) the Borrower proceeds of which are used to pay any fees and expenses owed by the Borrower, Holdings or any direct or indirect parent of Holdings, as the case may pay for the repurchasebe, retirement to Affiliates or other acquisition Persons, in each case, to the extent permitted by Section 7.08(p) hereof; and
(viii) to pay any other Permitted Payments to Parent (as defined in the 2029 Notes Indenture);
(i) payments made or retirement for value of Equity Interests expected to be made by Holdings, the Borrower or any of the Borrower Restricted Subsidiaries in respect of withholding or similar Taxes payable by or with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments and deemed repurchases in connection with the exercise of stock options;
(i) any Restricted Payment by Borrower or any other direct or indirect parent of its Subsidiaries pursuant Borrower to any employee or director equity planpay listing fees, employee or director stock option plan or any insurance premiums and other employee or director benefit plan or any agreement costs and expenses attributable to being a publicly traded company which are reasonable and customary and (including any stock subscription or shareholder agreementii) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per fiscal year not to exceed the sum of (Ax) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized net proceeds received by the Borrower (or by any direct or indirect parent of the Borrower and contributed to the Restricted Subsidiaries in Borrower) from any Equity Offerings of the form Borrower or any direct or indirect parent of refunds or deductions realized the Borrower (excluding any Equity Offering in connection with the Transactions;
) and (jy) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds 6.0% of the issuance of Qualified Equity Interests of the BorrowerMarket Capitalization;
(k) if Holdings, the Borrower shall become or any of the Subsidiary Restricted Subsidiaries may pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition;
(l) Restricted Payments in the amount of any Excluded Contribution;
(m) Holdings, the Borrower and any Restricted Subsidiary may pay dividends and distributions within 90 days after the date of declaration thereof, if at the date of declaration, such payment would have complied with another provision of Section 7.06;
(n) Restricted Payments so long as (i) no Event of Default shall have has occurred and be is continuing or would result therefromtherefrom at the time such Restricted Payment is made and (ii) the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis in accordance with Section 1.09) is less than or equal to 3.70 to 1.00;
(o) a Restricted Payment made to Parent on the Closing Date in an amount not to exceed $75.0 million;
(p) Restricted Payments consisting of the Equity Interests of any Unrestricted Subsidiary or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (other than any such Unrestricted Subsidiary, dividends the principal assets of which are Cash and distributions Cash Equivalents received as an Investment from Holdings, the Borrower or a Restricted Subsidiary);
(q) Restricted Payments, the proceeds of which will be used to fund the payment of interest and fees dividends to holders of up to $100,000,000 in initial face amount of Parent Preferred Equity, in an amount in any twelve-month period not to exceed (i) the sum of (a) the initial face amount of such Parent Preferred Equity plus (b) the amount of accretion resulting from dividends paid-in-kind on Indebtedness of Holdings permitted such Parent Preferred Equity, multiplied by Section 7.16; provided(ii) 2.6%, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only each case, so long as (x) no Event of Default shall have has occurred and be is continuing or would result therefromtherefrom at the time such Restricted Payment is made and (y) the Borrower shall be in Pro Forma Compliance with the financial covenant in Section 7.11; and
(lr) the declaration and payment of dividends and distributions on the to holders of a class or series of Disqualified Equity Interests of the Borrower or any Receivables Management Restricted Subsidiary issued on or after the Closing Date in accordance with Section 7.03 hereof. For the avoidance of doubt, any dividend or distribution otherwise permitted pursuant to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates this Section 7.06 may be in the Receivables Management Business (including as form of a lender loan; provided that Indebtedness of a Loan Party or financier under any financing provided to a Receivables Management SubsidiaryRestricted Subsidiary must be otherwise permitted by Section 7.03(d).
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Holdings and to other another Restricted Subsidiaries and Subsidiary that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non---wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any such other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interestsinterests);
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such PersonPerson (for the avoidance of doubt, any Restricted Subsidiary may declare and make such dividend payment or distribution paid in Equity Interests to Holdings);
(c) Holdings may make Restricted Payments in connection with the Transaction (including any amounts cash proceeds contributed to be paid under, or contemplated by, its common equity from the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement Net Cash Proceeds of any claims or actions (whether actualPermitted Equity Issuance Not Otherwise Applied, contingent or potential) so long as, with respect theretoto any such Restricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom;
(d) to the extent constituting Restricted Payments, the Borrower Holdings and the Restricted Subsidiaries may enter into and consummate transactions take actions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Sections 7.02(e) and (n)), 7.04, 7.086.18 or 7.13 (in each case, other than by reference to this Section 7.08(f7.06 (or any clause under this Section 7.06));
(e) repurchases of Equity Interests in the Borrower or Holdings and any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofParent Holding Company:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings Parent Holding Company to pay (or any direct to make a Restricted Payment to or indirect parent thereofInvestment in another Parent Holding Company to enable it to pay) to pay (a) such Parent Holding Company’s operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect parent thereof) attributable Parent Holding Company not to exceed the ratable share of the amount to which such Restricted Payment relates that is related to the ownership or operations of Holdings or the Borrower Restricted Subsidiaries or (b) the fees and other amounts described in Sections 7.08(c) and (d) to the extent that the Borrowers would be then permitted under such Sections 7.08(c) and (d) to pay such fees and other amounts directly;
(ii) for any taxable period for which Holdings or any of its Subsidiaries are members of a consolidated, combined, unitary, affiliated or similar income taxTax or VAT group of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), the portion of any income taxesTaxes (and any consolidated, combined, unitary, affiliated or similar franchise or similar taxesTaxes imposed in lieu of such income taxesTaxes of such Tax Group) or VAT due by the parent company of the relevant Tax Group for such taxable period, that is attributable to Holdings and/or its applicable Subsidiaries, provided that (A) Restricted Payments under this Section 7.06(e)(ii) for any taxable period shall not exceed the amount of such Taxes that Holdings and/or such Subsidiaries, as applicable, would have paid had Holdings and/or such Subsidiaries, as applicable, been a stand--alone taxpayer (or a stand--alone group) and (B) Restricted Payments under this Section 7.06(e)(ii) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Holdings or any of the Restricted Subsidiaries for such purpose;
(iii) the proceeds of which shall will be used to repurchase, retire or otherwise acquire the Equity Interests of Parent Holding Company, Holdings or any of its Restricted Subsidiaries (or to make a Restricted Payment to or an Investment in another Parent Holding Company or a direct or indirect equity holder thereof to enable it to repurchase, retire or otherwise acquire its Equity Interest) from directors, managers, consultants, employees or members of management of Holdings or any Restricted Subsidiary (or their estate, family members, spouse and/or former spouse), in each case in connection with the resignation, termination, death or disability of any such directors, managers, employees or members of management, in an aggregate amount not in excess of $30,000,000the greater of (x) $50,000,000 and (y) 1.0% of Consolidated Total Assets in any calendar year plus any unutilized portion of such amount in the immediately preceding two fiscal years (with such sum, however, not exceeding $40,000,000 at any time(with unused amounts in any calendar year being permitted to be carried over for succeeding calendar years); provided further that the amounts set forth in this clause (e)(iv) may be further increased by (A) the proceeds of any key--man life insurance received by Holdings (or a Parent Holding Company), the DutchParent Borrower or any direct or indirect parent thereofother Restricted Subsidiary (solely with respect to the calendar year in which such proceeds are received and without limiting any carry--over thereof permitted above), plus (B) to pay franchise taxes the extent contributed in cash to the common equity of Holdings or any Restricted Subsidiary and other feesnot theretofore utilized to make a Restricted Payment under this clause (e)(iv), taxes and expenses required the Net Cash Proceeds from the sale of Equity Interests of Holdings or any Parent Holding Company, in each case to maintain its (members of management, managers, directors or consultants of Holdings or any of its Subsidiaries or any Parent Holding Company that occurs after the Closing Date (provided that in no event shall any such contributed amounts increase the Cumulative Credit) plus (C) the amount of any cash bonuses or other cash compensation otherwise payable to any future, present or former director, manager, employee, member of management or consultant of Holdings or a direct or indirect parents’) corporate existenceequity holder thereof, DutchParent Borrower or any other Restricted Subsidiary that are foregone in return for the receipt of Equity Interests of Holdings or a direct or indirect equity holder thereof, DutchParent Borrower or any other Restricted Subsidiary pursuant to a deferred compensation plan of such equity;
(iv) the proceeds of which are applied to the purchase or other acquisition by any Parent Holding Company of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or more than 50% of the Equity Interests in a Person that; provided that if such purchase or other acquisition had been made by Holdings or any Restricted Subsidiary, it would have constituted a Holdings Election Event shall occur, to finance any Investment Permitted Acquisition permitted to be made pursuant to Section 7.027.02(i); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment purchase or other acquisition and (B) Holdings any Parent Holding Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary (other than (i) with respect to such assets, to any Foreign Subsidiaries of the U.S. Borrower and (ii) to the extent such Equity Interests constitute Foreign Subsidiaries, to the U.S. Borrower or any of its Restricted Subsidiaries Subsidiaries) or (2) the merger (to the extent permitted in Section 7.04) into any Restricted Subsidiary (other than the U.S. Borrower or any of its Subsidiaries to the extent constituting a Foreign Subsidiary) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); andpurchaser or other acquisition;
(v) if repurchases of Equity Interests of a Holdings Election Event shall occur, Parent Holding Company deemed to occur upon the non--cash exercise of stock options and warrants or similar equity incentive awards;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) a Parent Holding Company to pay (pay, or to make Restricted Payments to allow any direct or indirect parent thereof Parent Holding Company to pay) , other than to Affiliates of Holdings, a portion of any customary fees and expenses (other than to Affiliates) related to any unsuccessful equity offering by Holdings (or any Parent Holding Company) or offering or debt offering issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement, in each case not to exceed the ratable share of the amount to which such Restricted Payment relates that is directly related to the operations of Holdings and the Restricted Subsidiaries;
(gvii) the Borrower may proceeds of which shall be used to pay for customary salary, bonus and other benefits payable to officers, employees, consultants and independent contractors of any Parent Holding Company to the repurchaseextent such salaries, retirement bonuses and other benefits are attributable to the ownership or other acquisition operation of Holdings or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause and
(f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromforegoing Restricted Payments, the Borrower Borrowers may make additional Restricted Payments to a Parent Holding Company in an aggregate amount, together with amount not to exceed (1) the sumgreater of (1) $150,000,000400,000,000 and 6.0% of Consolidated Total Assets (less the aggregate amount of (i) all prepayments, redemptions, purchases, defeasances defeasements and other payments in respect satisfaction prior to the scheduled maturity of Junior Financings made Financing, Unsecured Financing and Permitted Refinancings thereof pursuant to Section 7.13(a)(iv7.13(iv)(y)) and plus (ii2) loans and advances made pursuant an amount (which shall not be less than zero) equal to the portion, if any, of the Cumulative Credit on the date of such election that the applicable Borrower elects to apply to this Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h7.06(f)(2), not such election to exceed be specified in a written notice of a Responsible Officer of the sum Borrower Representative calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that, in the case of this Section 7.06(f)(2), (A) $75,000,000 (immediately before and immediately after giving Pro Forma Effect to any such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).-210-
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to Holdings, the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) Holdings, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) Restricted Payments made on the Original Closing Date to consummate the Original Closing Date Transactions;
(e) to the extent constituting Restricted Payments, Holdings, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(ef) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or the Borrower or any direct or indirect parent thereof) attributable to Intermediate Holding Company after a Qualifying IPO of Holdings, the Borrower or its Subsidiaries determined such Intermediate Holding Company, as if the Borrower and its Subsidiaries filed separately;
(iicase may be) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to may pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such parent of Holdings or of the Borrower or any Intermediate Holding Company after a Qualifying IPO of Holdings, the Borrower or such Intermediate Holding Company, as the case may be) by any future, present or former employee or director of the Borrower Holdings (or any direct or indirect parent of Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower Holdings or any of its Subsidiaries; provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fg) does shall not exceed $29,000,000, in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 36,250,000 subsequent to the consummation of a Qualifying IPOIPO of Holdings, the Borrower or such Intermediate Holding Company, as the case may be) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 36,250,000 in any calendar year (which shall increase to $40,000,000 72,500,000, subsequent to the consummation of a Qualifying IPOIPO of Holdings, the Borrower or such Intermediate Holding Company, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings and, to the extent contributed to Holdings, Equity Interests of any of Holdings’ direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Original Closing Date, to the extent the Net Cash Proceeds from the sale of such Equity Interests have been Not Otherwise Applied to the payment of Restricted Payments by virtue of Section 7.06(i); plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries Not Otherwise Applied; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g); provided further that any cancellation of Indebtedness owing to Holdings from members of management of Holdings, any of Holdings’ direct or indirect parent companies or any of Holdings’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any of its direct or indirect parent companies will be deemed not to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;Holdings:
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings permitted by Section 7.16; provided, that to pay) the Borrower shall have elected tax liability to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment relevant jurisdiction of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder Holdings (or such parent) attributable to Holdings, the Borrower or its affiliates) participates in Subsidiaries determined as if the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Borrower and its Subsidiaries filed separately;
Appears in 1 contract
Sources: Credit Agreement (Travelport LTD)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower Company may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or 7.08 other than Section 7.08(f7.08(e);
(e) repurchases of Equity Interests in the Borrower ordinary course of business in the Company (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Company or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Company (or any direct or indirect parent of the Company) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings (or any direct or indirect parent thereof), the Lead Borrower or any Subsidiary; provided that such payments do not to exceed $25,000,000 in any calendar year, provided that any unused portion of the preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(f) in any calendar year (after giving effect to such carry forward) shall not exceed $50,000,000; provided further that cancellation of Indebtedness owing to the Company (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Company, any of the Company’s direct or indirect parent companies or any of the Company’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Company’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Company and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofholder of an Equity Interest in the Company:
(i) the proceeds of which will be used to pay the portion of any consolidated, combined or similar income tax liability attributable to each relevant jurisdiction in respect the income of consolidated, combined, unitary the Company or affiliated returns for its Subsidiaries; provided that (x) no such payments shall exceed the relevant jurisdiction income tax liability that would have been imposed on the Company and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of Holdings (any cash paid by such Unrestricted Subsidiary to the Company or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelyRestricted Subsidiary for such purpose;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay such equity holder’s operating costs and expenses incurred in the ordinary course of business and business, other corporate overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties)parties as well as trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Company attributable to the direct or indirect ownership or operations of the Borrower Company and its Subsidiaries) and fees and expenses otherwise due and payable by the Company or any Restricted Subsidiary and permitted to be paid by the Company or such Restricted Subsidiary under this Agreement not to exceed $10,000,000 in any fiscal year;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and excise taxes, and other fees, taxes and expenses expenses, required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Company or such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower it or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company or partner of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries;
(gh) the Borrower Company or any Restricted Subsidiary may pay for any dividend or distribution within 60 days after the repurchasedate of declaration thereof, retirement if at the date of declaration such payment would have complied with the provisions of this Agreement;
(i) the Company or other acquisition or retirement for value any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(j) within sixty (60) days following the Borrower by any futureconsummation of a Specified Disposition, present or former employee or director of the Borrower Company or any of its Subsidiaries pursuant may pay dividends to any employee or director equity plan, employee or director stock option plan the Holding Company (or any other employee direct or director benefit plan indirect parent thereof) with all or any agreement (including any stock subscription or shareholder agreement) with any employee or director portion of the Permitted Specified Disposition Net Cash Proceeds, if any, of such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant Subsidiaries to this clause pay such dividend;[reserved];
(fk) does not exceed in any fiscal year of the Borrower $15,000,000 within sixty (which shall increase to $20,000,000 subsequent to 60) days following the consummation of a Qualifying IPOPermitted LifeCell Disposition, with unused amounts in the Company or any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect of its Subsidiaries may pay dividends to the following provisoHolding Company (or any direct or indirect parent thereof) with all or any portion of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation Permitted LifeCell Net Cash Proceeds, if any, of a Qualifying IPO);
(h) such Disposition so long as a Responsible Officer of the Lead Borrower notifies the Administrative Agent not later than ten (10) Business Days prior to the payment of such dividend of the intent of the Company or any of its Subsidiaries to pay such dividend; and
(l) the Company or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount, provided that (x) at the time of any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom, (y) at the Borrower may make additional time of such Restricted Payments Payment and after giving effect thereto and to the incurrence of any Indebtedness in an aggregate amountconnection therewith, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 the Company shall have been in compliance, on a Pro Forma Basis, with the Financial Covenants as of the end of the most recent Test Period and (such amount to be increased to $100,000,000 upon B) the Total First Lien Senior Secured Leverage Ratio as of the last day end of the most recent Test Period, on a Pro Forma Basis, would be less than 3.5:1.0 and (z) in the case of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional such Restricted Payments Payment in an amount (together with the aggregate amount in excess of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom$50,000,000, the Lead Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice has delivered to the Administrative Agent stating that a certificate of a Responsible Officer, together with all relevant financial information reasonably requested by the Borrower will make such dividends and distributions (Administrative Agent, demonstrating the “Restricted Payments Interest Expense Election”) in respect calculation of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromAvailable Amount; and
(m) (l) the declaration and payment by the Company of dividends and distributions on the Equity Interests common stock or common equity interests of any Receivables Management Subsidiary the Company or the Holding Company following a public offering of such common stock or common equity interests, in an amount not to holders exceed 6% of minority interests substantially consistent with past practice the proceeds received by or contributed to the extent such holder (Company in or its affiliates) participates from any public offering in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Acelity L.P. Inc.)
Restricted Payments. Declare The Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Lead Borrower, and to other Restricted Subsidiaries and of the Lead Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Lead Borrower (or any Parent) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Lead Borrower or any Restricted Subsidiary of the Lead Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, or warrantswarrants or other equity-based awards;
(f) the Lead Borrower and each Restricted Subsidiary may (i) pay (or may make Restricted Payments to allow any Holdco or any Parent to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Lead Borrower or any other such Parent) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any other Parent) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any Holdco or any Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any Parent) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholder’s agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Lead Borrower or any Parent) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $30,000,000 in any calendar year; provided, further, that unused amounts in any calendar year may be used in the next two succeeding years); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(i) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”; and
(ii) the Net Proceeds of key man life insurance policies received by the Lead Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that that cancellation of Indebtedness owing to the Lead Borrower or any Restricted Subsidiary from members of management of the Lead Borrower, any of the Lead Borrower’s Parents or any of the Lead Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Lead Borrower’s Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Lead Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $100,000,000 and 4.25% of Total Assets, as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(vi)) plus (y) the Cumulative Credit at such time (provided that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrowers, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Lead Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:Parent;
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such Parent attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its Parents’) corporate existence or (B) costs and expenses (including Public Company Costs) incurred by such Parent in connection with such Parent being a public company, including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
(iii) for any taxable period in which the Lead Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income or similar tax group of which a direct or indirect parents’) corporate existence;
parent of Lead Borrower is the common parent (iv) if a Holdings Election Event shall occur“Tax Group”), to finance pay federal, foreign, state and local income or similar taxes of such Tax Group that are attributable to the taxable income of the Lead Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were corporations paying taxes separately from any Investment Tax Group at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if the Lead Borrower or Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided further that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes for such taxable period or any previous taxable period ending after the date hereof and not previously taken into account for purposes of calculating the limitation in this proviso;
(iv) to finance any Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 made by the Lead Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such Parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Lead Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of any Holdco or any Parent and any payroll, social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g) and (k) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementLead Borrower or a Restricted Subsidiarity); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Holdco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementany Holdco (or any Parent) that is directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by any Holdco (or any Parent);
(gi) payments made or expected to be made by any Holdco, the Lead Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchases of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity-based awards;
(j) so long as no Default shall have occurred and be continuing dividends on the common stock or would result therefrom, the Borrower may make Restricted Payments with the proceeds common equity interests of the issuance of Qualified Equity Interests Lead Borrower or any Parent in an aggregate amount per annum not to exceed an amount equal to 6% of the Borrowernet proceeds received by (or contributed to) the Lead Borrower from any Qualified IPO (including the Initial Public Offering);
(k) if the Lead Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of the issuance of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisitions; and
(l) additional Restricted Payments so long as immediately after giving effect to such Restricted Payment, (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the declaration Total Net Leverage Ratio calculated on a Pro Forma Basis is no greater than 2.00 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Lead Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Restricted Payments. Declare Except for transactions between or makeamong Loan Parties, directly the Borrower will not (nor will it permit any of the Restricted Subsidiaries to) make any dividend payment or indirectlyother distribution of assets, properties, cash, rights, or securities on account of any shares of any class of Equity Interests of the Borrower or any of the Restricted PaymentSubsidiaries, exceptor purchase, redeem or otherwise acquire for value (or permit any of the Restricted Subsidiaries to do so) any shares of any class of Equity Interests of the Borrower or any of the Restricted Subsidiaries or any warrants, rights or options to acquire any such shares, now or hereafter outstanding (collectively, “Restricted Payments”), except that:
(a) (i) each Restricted Subsidiary may (i) make Restricted Payments to the Borrower and to other Restricted Subsidiaries and that directly or indirectly own Equity Interests of such Restricted Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other of its Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests a pro rata basis to the holders of its Equity Interests or on a greater than ratable basis to the relevant class of Equity Interests;
(b) extent such greater payments are made solely to the Borrower or a Restricted Subsidiary) and each Restricted Subsidiary may (ii) declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(db) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 Sections 6.07 (other than Section 7.08(f6.07(b)), 6.10 (other than Section 6.10(d)), 6.11 (other than Section 6.11(b)) and 6.13 (other than Sections 6.13(c) and (f));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fc) the Borrower and its the Restricted Subsidiaries may make additional Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations portion, if any, of the Available Amount as of such time that the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) elects to pay franchise taxes and other fees, taxes and expenses required apply to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to this Section 7.026.05(c); provided that (Ai) before and after giving effect to any such Restricted Payment, no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to any such Restricted Payment, the Leverage Ratio is equal to or less than 4.00 to 1.00 on a pro forma basis after giving effect to such Restricted Payment shall be made substantially concurrently with and the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted pro forma adjustments described in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement1.06;
(gd) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or director consultant of the Borrower or any of its the Subsidiaries pursuant to (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiariesforegoing); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to under this clause (fd) does not exceed in any fiscal year does not exceed (x) $25.0 million (the “Yearly Limit”) plus (y) the portion of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to Yearly Limit from the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar immediately preceding fiscal year (not including any fiscal year ending on or prior to January 31, 2021) which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, was not expended by the Borrower may make additional for Restricted Payments in an aggregate amountsuch fiscal year (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, together with the aggregate amount of Yearly Limit applicable to the previous fiscal year shall be deemed to have been utilized first by any Restricted Payments made under this clause (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(md) in lieu such fiscal year) plus (z) the net cash proceeds received from key man life insurance policies received by the Borrower or any Restricted Subsidiary (less the amount of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together previously made with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the cash proceeds of the issuance of Qualified Equity Interests of the Borrowersuch key man life insurance);
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Sources: Credit Agreement (Cloudera, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) to consummate the Transactions, (ii) in connection with respect of working capital adjustments or purchase price adjustments pursuant to the Transaction Merger Agreement, (including any amounts iii) in order to be paid under, or contemplated by, satisfy indemnity and other similar obligations under the Transaction AgreementMerger Agreement and (iv) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, warrants or warrantsother equity-based awards;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings or any parent thereof made pursuant to clause (25) of the definition of “Permitted Investments” in lieu of Restricted Payments permitted by this clause (f) shall not exceed $12,000,000 in any calendar year (which shall increase to $18,000,000 subsequent to the consummation of a Qualified IPO) (with 100% of the unused amounts in any calendar year being carried over to succeeding calendar years); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”;
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $24,000,000 and 2.2% of Total Assets as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(iv)), plus (y) the Cumulative Credit at such time (provided, that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a)(ii) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrower, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise and similar taxes and other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period for which the Borrower is a disregarded entity or a partnership for U.S. federal income tax purposes or for which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent, in an amount equal to the product of (x) taxable income of the Borrower and, to the extent applicable, its Subsidiaries and (y) the highest combined marginal income tax rate applicable to an individual or corporate resident in New York City that holds equity in the Borrower (“Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 if made by the Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any direct or indirect parent thereof);
(gi) payments made or expected to be made by Holdings, the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the vesting or settlement of other equity-based awards;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (A) $75,000,000 (such an amount equal to be increased to $100,000,000 upon the Total Leverage Ratio as 6% of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of from such Qualified Equity Interests of the BorrowerIPO;
(k) if Holdings, the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisition; and
(l) Restricted Payments in an aggregate amount not to exceed the declaration and payment net cash proceeds received by the Borrower or any Restricted Subsidiary from a Person other than Holdings or a Subsidiary thereof from the sale of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided Sale Leaseback Properties pursuant to a Receivables Management Subsidiary)Sale Leaseback Transaction; provided, that immediately after giving effect to any such Restricted Payment (A) no Event of Default has occurred and is continuing and (B) the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 6.50:1.00; and
(m) additional Restricted Payments (the proceeds of which may be utilized by Holdings to make additional Restricted Payments) so long as immediately after giving effect to such Restricted Payment, the Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00, and satisfaction of such test shall be evidenced by a certificate from a Responsible Officer of the Borrower demonstrating such satisfaction calculated in reasonable detail.
Appears in 1 contract
Restricted Payments. Declare (a) 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) except (i) each the Borrower may declare and pay dividends with respect to its capital stock not to exceed $10,000,000 in the aggregate in any fiscal year, (ii) Restricted 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) Borrower or any Restricted Subsidiary may make Restricted Payments in respect of Employment Arrangements (including but not limited to the purchase of Equity Interests in Borrower), (v) Borrower and or any Restricted Subsidiary may make a Restricted Payment pursuant to other a Put Arrangement, (vi) Borrower or any Restricted Subsidiaries and Subsidiary may make dividends or distributions of common Equity Interests or options or rights to acquire common Equity Interests, (iivii) each non-wholly owned a Restricted Subsidiary may make Restricted Payments pursuant 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;
Pure Partners Transactions (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns but only for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments applicable Pure Partners Agreements are in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).full
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(n)), 7.04 (other than a merger or consolidation of Holdings and the Parent Borrower) or 7.08 (other than Section 7.08(a) or (j));
(e) repurchases of Equity Interests in Parent, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its SubsidiariesSubsidiaries (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Parent Borrower (or of any direct or indirect parent of the Parent Borrower) in connection with any such repurchase, retirement or other acquisition or retirement); provided, however, provided that the aggregate amount of payments made pursuant to this clause paragraph (f) does may not exceed in any fiscal calendar year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, 50,000,000 with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect of $75,000,000 in any calendar year; provided that any cancellation of Indebtedness owing to the following provisoParent Borrower in connection with and as consideration for a repurchase of Equity Interests of the Parent Borrower (or any of its direct or indirect parents) shall not be deemed to constitute a Restricted Payment for purposes of $30,000,000 this clause (f); provided that such amount in any calendar year may be increased by an amount not to exceed the sum of (1) the amount of Net Cash Proceeds of Permitted Equity Issuances to employees, directors, officers, managers or consultants (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries that occurs after the Closing Date plus (2) the net cash proceeds of key man life insurance policies received by the Parent Borrower or any of its Restricted Subsidiaries after the Closing Date;
(g) the Parent Borrower may make Restricted Payments to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability (including additions to tax, penalties and interests with respect thereto) to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability (including additions to tax, penalties and interest with respect thereto) does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Restricted Subsidiaries as a stand-alone group and (B) the actual tax liability (including additions to tax, penalties and interest with respect thereto) of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Restricted Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Restricted Subsidiaries;
(ii) the proceeds of which shall increase be used to $40,000,000 subsequent pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) its operating costs and expenses incurred in the ordinary course of business and other overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, to the consummation extent attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries;
(iii) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) legal existence;
(iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or a Qualifying IPO)Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) or (2) the merger or amalgamation (to the extent not prohibited by Section 7.04) of the Person formed or acquired into the Parent Borrower or a Restricted Subsidiary (or Loan Party if the Investment would have been required to be made in a Loan Party under Section 7.02) in order to consummate such Permitted Acquisition, in each case, in accordance with the applicable requirements of Section 6.11;
(v) the proceeds of which shall be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any equity or debt offering not prohibited by this Agreement (whether or not successful) and directly attributable to the operation of the Parent Borrower and its Restricted Subsidiaries; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries, only to the extent such amounts are deducted, for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, in calculating Consolidated EBITDA for any period;
(h) the Parent Borrower or any of its Restricted Subsidiaries may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S-4 or Form S-8;
(k) purchases of Equity Interests of CCOH permitted by Section 7.02(p) or Section 7.02(v)(ii); and
(l) in addition to the forgoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Parent Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) repayments, prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hSections 7.12(a)(vii), not to exceed the sum of (Ai) $75,000,000 400,000,000 and (ii) the Available Amount at such amount time. Notwithstanding anything to be increased the contrary contained in Article VII (including Sections 7.02 and 7.12 and this Section 7.06), the Parent Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly pay any cash dividend or make any cash distribution on or in respect of the Parent Borrower’s Equity Interests or purchase or otherwise acquire for cash any Equity Interests of the Parent Borrower or any direct or indirect parent of the Parent Borrower, for the purpose of directly or indirectly paying any cash dividend or making any cash distribution to, or acquiring any Equity Interests of the Parent Borrower or any direct or indirect parent of the Parent Borrower for cash from, the Sponsors, or guarantee any Indebtedness of any Affiliate of the Parent Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Equity Interests to $100,000,000 upon or from the Sponsors, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Available Amount or the exceptions provided by Sections 7.02(n) and (p), Sections 7.06(i) and (l) and Section 7.12(a)(vii), unless (x) at the time and after giving effect to such payment, the Total Leverage Ratio as of for the last day of any Test Period being than last ended is less than 5.0 6.0 to 1.0) 1.0 and (By) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments such payment is otherwise in an amount (together compliance with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)this Agreement.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent thereof) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrower or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $20,000,000 in any calendar year (which shall increase to $50,000,000 subsequent to the consummation of a Qualifying IPO of Holdings or any direct or indirect parent thereof, as the case may be) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $40,000,000 in any calendar year (which shall increase to $75,000,000 subsequent to the consummation of a Qualifying IPO of the Holdings or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the Net Cash Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement.
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant such jurisdiction of Holdings the Borrower (or any such direct or indirect parent thereofparent) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; and
(i) 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 the Borrower’s direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Borrower from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted pursuant to Sections 7.02, 7.06 or 7.12;
(j) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement options; and
(including any stock subscription or shareholder agreementk) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent addition to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(iv) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (hi), not to exceed the sum of (Ai) $75,000,000 (such amount to be increased to the greater of $100,000,000 upon and 2.5% of Total Assets, (ii) the Total Leverage Ratio aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances that are Not Otherwise Applied and (iii) if as of the last day of any the immediately preceding Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefromPeriod, the Borrower may make additional Restricted Payments is in an amount (together compliance with the aggregate Senior Secured Incurrence Test (calculated on a Pro Forma Basis), the amount of Investments made pursuant the Available Amount that is Not Otherwise Applied. Notwithstanding anything to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromcontrary herein, the Borrower may will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Payment consisting of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as proceeds from a lender or financier under any financing provided to a Receivables Management Subsidiary)Qualified Securitization Transaction.
Appears in 1 contract
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section SectionSection 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 2.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $25,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this SectionSection 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to SectionSection 7.13(a)(v)(x), (x) the greater of (i) $70,000,000 and Holdings (ii) 3.00% of Consolidated Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iviii) if with respect to any taxable year (or portion thereof) with respect to which the Borrower is treated as a Holdings Election Event shall occurdisregarded entity or partnership for U.S. federal, applicable state and/or local income tax purposes, on a quarterly basis and no later than five (5) days before the date specified in Section 6655(c)(2) of the Code, in amounts equal to finance any Investment permitted the Tax Amount. The “Tax Amount”, calculated for the period beginning on the start of a relevant taxable year, through the end of the applicable quarter, is the Highest Partner Tax Amount divided by the Total Percentage Interest for the Partner described in the immediately following sentence. The “Highest Partner Tax Amount” is, with respect to be made the Partner receiving the greatest allocation of estimated net taxable income pursuant to Section 7.02; provided that the Partnership Agreement as of March 17, 2015 (relative to its Total Percentage Interest) in the applicable time period, (A) the estimated aggregate taxable income of Summit Holdings (calculated assuming the tax items attributable to the Borrower are the only tax items of Summit Holdings) allocated to such Restricted Payment shall be made substantially concurrently with Partner in such time period (for the closing avoidance of such Investment and doubt, excluding any adjustments under Sections 743(b) of the Code), multiplied by (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its SubsidiariesAssumed Tax Rate; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in for any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of period beginning after both (i) prepaymentsthe date on which no Blackstone Limited Partner holds Units and (ii) the earlier of (A) the date on which all Units outstanding as of March 17, redemptions2015 have become vested (without taking into account any service-based vesting requirements) or (B) June 30, purchases, defeasances and other payments in respect 2020 (the later of Junior Financings made pursuant to Section 7.13(a)(ivthe dates under (i) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (habove, the “Trigger Date”), not the calculation of Highest Partner Tax Amount shall be made with reference to exceed Summit Materials, Inc. (regardless of which Partner receives the sum greatest relative allocation of (A) $75,000,000 (such amount to be increased to $100,000,000 upon estimated net taxable income); provided that , in calculating the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth “Highest Partner Tax Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom”, the Borrower may make additional Restricted Payments in an amount “estimated net taxable income” shall be reduced by any cumulative net taxable losses allocable to each applicable Partner (together or its successor) with the aggregate amount of Investments made pursuant respect to Section 7.02(v)all prior taxable years (or portions thereof) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
beginning after March 17, 2015 (jdetermined as if all such periods were one period) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder cumulative net taxable loss is of a character (ordinary or capital) that would permit such loss to be deducted by the applicable Partner against the income of the taxable year in question (or its affiliatesportion thereof); provided further; if the quarterly distributions permitted under this clause (iii) participates with respect to any taxable year exceed (or are less than) the distribution that would have been permitted under this clause (iii) if such distribution had instead been determined on an annual basis (i.e., based on the entirety of such taxable year, taking into account income allocations on final tax returns), any such excess (or shortfall) shall reduce (in the Receivables Management Business case of an excess) or increase (including as in the case of a lender or financier shortfall) dollar for dollar permitted distributions under any financing provided to a Receivables Management Subsidiarythis clause (iii) for the immediately subsequent taxable year (and, if necessary, later taxable years).;
Appears in 1 contract
Restricted Payments. Declare The Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Lead Borrower, and to other Restricted Subsidiaries and of the Lead Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Lead Borrower (or any Parent) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Lead Borrower or any Restricted Subsidiary of the Lead Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, or warrantswarrants or other equity-based awards;
(f) the Lead Borrower and each Restricted Subsidiary may (i) pay (or may make Restricted Payments to allow any Holdco or any Parent to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Lead Borrower or any other such Parent) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any other Parent) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any Holdco or any Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any Parent) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholder’s agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Lead Borrower or any Parent) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $30,000,000 in any calendar year; provided, further, that unused amounts in any calendar year may be used in the next two succeeding years); provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(i) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”; and
(ii) the Net Proceeds of key man life insurance policies received by the Lead Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that that cancellation of Indebtedness owing to the Lead Borrower or any Restricted Subsidiary from members of management of the Lead Borrower, any of the Lead Borrower’s Parents or any of the Lead Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Lead Borrower’s Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Lead Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $125,000,000 and 4.25% of Total Assets, as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(vi)) plus (y) the Cumulative Credit at such time (provided that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrowers, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Lead Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:Parent;
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such Parent attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its Parents’) corporate existence or (B) costs and expenses (including Public Company Costs) incurred by such Parent in connection with such Parent being a public company, including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the Sa▇▇▇▇▇▇-▇▇▇▇▇ ▇ct of 2002;
(iii) for any taxable period in which the Lead Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income or similar tax group of which a direct or indirect parents’) corporate existence;
parent of Lead Borrower is the common parent (iv) if a Holdings Election Event shall occur“Tax Group”), to finance pay federal, foreign, state and local income or similar taxes of such Tax Group that are attributable to the taxable income of the Lead Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were corporations paying taxes separately from any Investment Tax Group at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if the Lead Borrower or Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided further that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes for such taxable period or any previous taxable period ending after the date hereof and not previously taken into account for purposes of calculating the limitation in this proviso;
(iv) to finance any Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 made by the Lead Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such Parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Lead Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of any Holdco or any Parent and any payroll, social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g) and (k) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementLead Borrower or a Restricted SubsidiaritySubsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Holdco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementany Holdco (or any Parent) that is directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by any Holdco (or any Parent);
(gi) payments made or expected to be made by any Holdco, the Lead Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchases of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity-based awards;
(j) so long as no Default shall have occurred and be continuing dividends on the common stock or would result therefrom, the Borrower may make Restricted Payments with the proceeds common equity interests of the issuance of Qualified Equity Interests Lead Borrower or any Parent in an aggregate amount per annum not to exceed an amount equal to 6% of the Borrowernet proceeds received by (or contributed to) the Lead Borrower from any Qualified IPO (including the Initial Public Offering);
(k) if the Lead Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of the issuance of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisitions; and
(l) additional Restricted Payments so long as immediately after giving effect to such Restricted Payment, (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the declaration Total Net Leverage Ratio calculated on a Pro Forma Basis is no greater than 2.00 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Lead Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.039.3) of such Person;
(c) Restricted Payments made (i) to consummate the Transaction, (ii) in connection with the Transaction (including any amounts to be paid under, respect of working capital adjustments or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect purchase price adjustments pursuant to the TransactionsPurchase Agreement and (iii) in connection with, or as a result of, their exercise of appraisal rights order to satisfy indemnity and other similar obligations under the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoPurchase Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 9.2 (other than Section 7.08(f9.2(e)), 9.4 (other than a merger or consolidation of Holdings and the Borrower) or 9.8 (other than Sections 9.8(a) or (i));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrantswarrants or other equity-based awards;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) (or of any such direct or indirect parent thereof) held by any future, present or former employee, manager, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee, manager 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, director, consultant or distributor of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries in an aggregate amount after the Effective Date together with the aggregate amount of loans and advances to Holdings (or any direct or indirect parent thereof) made pursuant to Section 9.2(m) in lieu of Restricted Payments permitted by this clause (f) not to exceed $15,000,000 in any calendar year with unused amounts in any calendar year being carried over to succeeding calendar years; provided that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries after the Effective Date; and provided further that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(iA) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Borrower and/or the Borrower’s Subsidiaries as a stand-alone group), reduced by any such taxes paid or to be paid directly by the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(iiB) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course Ordinary Course of business Business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course Ordinary Course of businessBusiness, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iiiC) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof which does not own other Subsidiaries besides Holdings, its Subsidiaries and the direct or indirect parents of Holdings to pay) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its such direct or indirect parents’) corporate existenceexistence or (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 costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
(ivD) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.029.2; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings and the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.049.4) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral 8.11 and Guarantee Requirement); and9.2;
(vE) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(F) the proceeds of which (A) shall be used to pay salary, commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll, social security or similar taxes hereof to the extent such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 9.8(g) and (i) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Restricted Subsidiary);
(gh) the Borrower or any of the Restricted Subsidiaries may pay for the repurchasecash in lieu of fractional Equity Interests in connection with any dividend, retirement split or other acquisition combination thereof or retirement for value any Permitted Acquisition;
(i) [reserved];
(j) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the Borrower exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options;
(k) the proceeds of which shall be used to pay customary “AHYDO catch-up payments”;
(l) 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) (A) 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 (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any of its Subsidiaries pursuant to any employee direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOindirect parent thereof);
(hm) so long as no Default shall have occurred and be continuing or would result therefromin addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h9.12(a)(i)(D), not to exceed the sum greater of (A) $75,000,000 (15,000,000 and 7.5% of Adjusted EBITDA, in each case determined at the time of such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;Restricted Payment; and
(in) so long as no Default shall have occurred and be continuing without duplication of, or would result therefromaggregation with, any Restricted Payments made under any other clause of this Section 9.9, the Borrower and its Restricted Subsidiaries may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so as long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)RP Conditions are satisfied after giving effect thereto.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, and shall not cause or makepermit any Restricted Subsidiary to, directly or indirectly, any make a Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner repurchase of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon the exercise of stock or other equity options or warrants if to the extent such Equity Interests represent a portion of the exercise price of such those stock or other equity options and any repurchase or other acquisition of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants, incentives or other rights to acquire Equity Interests;
(fb) payments of cash, dividends, distributions, advances or other Restricted Payments by the Borrower and its or any Restricted Subsidiaries may make Restricted Payments Subsidiary to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
allow the payment of cash in lieu of the issuance of fractional shares upon (i) the proceeds exercise of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary options or affiliated returns for the relevant jurisdiction of Holdings (warrants or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds conversion or exchange of which shall be used by Holdings Equity Interests of any such Person;
(or any direct or indirect parent thereofc) payments to pay operating expenses incurred in dissenting stockholders of 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 Borrower not to exceed $3,000,000 5,000,000 in any fiscal year plus any reasonable and customary indemnification the aggregate made (i) pursuant to applicable law or (ii) in connection with the settlement or other satisfaction of legal claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently or in connection with the closing a consolidation, merger or transfer of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if connection with a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted transaction not prohibited by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(hd) so long as (i) no Event of Default shall have occurred and be continuing on the date of declaration thereof and (ii) no Event of Default under Section 9.1.1 [Payments Under Loan Documents], Section 9.1.12 [Involuntary Proceedings] or would result therefromSection 9.1.13 [Voluntary Proceedings] has occurred and is continuing on the date of payment thereof, distributions in cash in respect of any fiscal quarter of the Borrower may make additional Restricted Payments to the holders of the Borrower’s Equity Interests in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments repurchases in respect of Junior Financings made such fiscal quarter pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h8.2.5(e), not to exceed the sum of “Available Cash” (Aas defined in the Partnership Agreement) $75,000,000 (with respect to such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amountfiscal quarter;
(ie) so long as no Event of Default shall have occurred and be continuing or would result therefromon the date of such repurchase, repurchases in cash of common units representing limited partnership interests of the Borrower may make additional Restricted Payments Borrower, in an aggregate amount (for any fiscal quarter, together with the aggregate amount of Investments made distributions in respect of such fiscal quarter pursuant to Section 7.02(v8.2.5(d)) , not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries “Available Cash” (as defined in the form Partnership Agreement) with respect to such fiscal quarter; provided that the aggregate amount of refunds or deductions realized repurchases pursuant to this clause (e) shall not exceed $150,000,000 in connection with any calendar year and shall not exceed $200,000,000 in the Transactionsaggregate from and after the Amendment No. 2 Effective Date;
(jf) so long as repurchases for cash and cancellation of outstanding incentive distribution rights of the Borrower; provided that (x) after giving effect to any such repurchase and any incurrence of Indebtedness in connection therewith on a Pro Forma Basis, (i) the Secured Leverage Ratio shall be no Default greater than 3.00 to 1.00, (ii) the Total Leverage Ratio shall have occurred be no greater than 4.00 to 1.00 and be continuing or (iii) Availability would result therefromequal not less than 20% of the Commitments, (y) such repurchase is permitted by all documentation governing any Permitted Unsecured Notes and (z) the Borrower may make Restricted Payments shall deliver to the Administrative Agent prior to such repurchase and cancellation, an Officer’s Certificate certifying compliance with the proceeds requirements of clauses (x) and (y) above and setting forth calculations in reasonable detail showing such compliance;
(g) any repurchase of outstanding Equity Interests of the issuance of Qualified Borrower in exchange for Equity Interests (other than Disqualified Stock) of the Borrower;
(kh) if the Borrower shall become the Subsidiary prepayment of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on any Subordinated Obligations with Refinancing Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromthereof; and
(li) repurchases of Subordinated Obligations of the declaration Borrower or any Guarantor at a purchase price not greater than 100% of the principal amount of such Subordinated Obligations in the event of an asset disposition, in each case plus accrued and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice unpaid interest thereon, to the extent required by the terms of such holder (or Subordinated Obligations, but only if the Borrower has complied with and fully satisfied its affiliates) participates obligations in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)accordance with Section 8.2.7 [Dispositions].
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made (i) on the Transaction Closing Date to consummate the Transactions and (including any amounts to be paid under, or contemplated by, the Transaction Agreementii) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO)); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, directors, officers, members of management, or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise increased the Cumulative Credit; and
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; less
(C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) above; and provided further that cancellation of Indebtedness owing to the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of $91,000,000 and Holdings 3.50% of Total Assets, in each case, determined at the time such Restricted Payments are made plus (y) 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 immediately after giving effect to such transaction on a pro forma basis, the Borrower could incur $1.00 of additional Permitted Ratio Debt plus (z) if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 4.00 to 1.00, $80,000,000, in each case, determined at the time the applicable Restricted Payment is made;
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 and Section 7.08 if such parent were subject to such sections; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if the proceeds of which (A) shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Borrower or a Holdings Election Event shall occur, Restricted Subsidiary);
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gvii) the Borrower may pay for the repurchase, retirement or fees and expenses other acquisition or retirement for value of Equity Interests than to Affiliates of the Borrower related to any unsuccessful equity or debt offering of such parent entity;
(viii) amounts payable pursuant to the Sponsor Management 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 board of directors of the Borrower to the Lenders when taken as a whole, as compared to the Sponsor Management Agreement as in effect on the Closing Date (it being understood that any amendment thereto or replacement thereof to increase the fees payable pursuant to the Sponsor Management Agreement would be deemed to be materially disadvantageous to the Lenders)), solely to the extent such amounts are not paid directly by the Borrower or its 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 employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (fii) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), per annum not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount equal to 6% the net proceeds received by (together with the aggregate amount of Investments made pursuant to Section 7.02(v)or contributed to) not to exceed any reduction in taxes realized by the Borrower and the its Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of from such Qualified Equity Interests of the BorrowerIPO;
(k) if Holdings, the Borrower shall become or any of the Subsidiary Restricted Subsidiaries may pay cash in lieu of Holdingsfractional Equity Interests in connection with any dividend, so long as no Default shall have occurred and be continuing split or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions combination thereof or any Permitted Acquisition;
(the “l) Restricted Payments Interest Expense Election”in the amount of (a) any Excluded Contributions previously received or (b) without duplication with clause (a), from the Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lm) one or more Restricted Payments that are made with the declaration and payment net cash proceeds of dividends and distributions the 2GIG Disposition; provided that the Total Leverage Ratio on a Pro Forma Basis shall be no more than 5.00 to 1.00 at the Equity Interests time of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent each such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Restricted Payment.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly wholly-owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(bi) the Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Borrower) or 7.08 (other than Section 7.08(f7.08(a) or (j));
(e) repurchases of Equity Interests in Holdings, the Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (or of any such direct or indirect parent of the Borrower) by any future, present or former employee employee, director, officer, manager or director consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee future, present or director former employee, director, officer, manager or consultant of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries; providedSubsidiaries (including, howeverfor the avoidance of doubt, that any principal and interest payable on any notes issued by the aggregate amount Borrower (or of payments made pursuant to this clause (f) does not exceed in any fiscal year direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOBorrower) in connection with any such repurchase, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPOretirement or other acquisition or retirement);
(hg) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with to Holdings or to any direct or indirect parent of Holdings:
(i) the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will pay (or make such dividends and distributions (the “Restricted Payments Interest Expense Election”to allow any direct or indirect parent thereof to pay) the tax liability to each foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated return is filed by Holdings (or such direct or indirect parent) that includes the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment Borrower and/or any of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice its Subsidiaries, to the extent such holder tax liability does not exceed the lesser of (or A) the taxes that would have been payable by the Borrower and/or its affiliates) participates in the Receivables Management Business (including Subsidiaries as a lender or financier under any financing provided to a Receivables Management Subsidiary).stand-alone group and
Appears in 1 contract
Sources: Credit Agreement (Avaya Inc)
Restricted Payments. Declare The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, directly or indirectly, pay any Restricted PaymentPayments, exceptexcept that, in each case, so long as no Default or Unmatured Default then exists or would result therefrom, the following shall be permitted:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the payment by the Borrower and to or any Subsidiary of dividends payable in its own Capital Stock (other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Intereststhan Disqualified Stock);
(b) the Borrower and each making of any Restricted Subsidiary may declare and make dividend payments Payment in exchange for, or other distributions payable solely in out of the Equity Interests proceeds of, the substantially concurrent contribution of common equity capital to the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (other than Disqualified Equity Interests not otherwise permitted by Section 7.03b) of such Personthe definition of Basket Amount;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary Capital Stock deemed to occur upon exercise of stock options or warrants if such Equity Interests represent Capital Stock represents a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(ld) the declaration and payment of dividends and or distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests any class or series of preferred stock of any Subsidiary issued in accordance with Section 6.14;
(e) the defeasance, redemption, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Borrower made by exchange for, or out of the proceeds of the substantially consistent concurrent sale of, new Subordinated Indebtedness (“Refinancing Restricted Indebtedness”) of the Borrower, as the case may be, that is incurred in compliance with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).Section 6.14 so long as:
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Parent Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) (i) the Parent Borrower may redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Parent Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Parent Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 (other than a merger or consolidation of Holdings and the Parent Borrower) or 7.08 (other than Section 7.08(f7.08(a), (f), (j) or (k));
(e) repurchases of Equity Interests in Holdings, the Parent Borrower or any of the Restricted Subsidiary Subsidiaries deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Parent Borrower and may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (or of any such direct or indirect parent of the Parent Borrower) by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Restricted Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, consultant or distributor of the Parent Borrower (or any direct or indirect parent of the Parent Borrower) or any of its Subsidiaries;
(g) the Parent Borrower may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment or to any direct or indirect parent thereofof Holdings:
(i) the proceeds of which will be used to pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) the tax liability to each relevant foreign, federal, state or local jurisdiction in respect of which a consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of return is filed by Holdings (or any such direct or indirect parent) that includes the Parent Borrower and/or any of its Subsidiaries, to the extent such tax liability does not exceed the lesser of (A) the taxes that would have been payable by the Parent Borrower and/or its Subsidiaries as a stand-alone group and (B) the actual tax liability of Holdings’ consolidated, combined, unitary or affiliated group (or, if Holdings is not the parent thereof) attributable to of the actual group, the taxes that would have been paid by Holdings, the Parent Borrower and/or the Parent Borrower’s Subsidiaries as a stand-alone group), reduced by any such payments paid or to be paid directly by the Parent Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separatelySubsidiaries;
(ii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Parent Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Parent Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Parent Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Parent Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementAgreement (whether or not successful); and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and the Restricted Subsidiaries;
(gh) the Parent Borrower or any of the Restricted Subsidiaries may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (i) such payment would have complied with the provisions of this Agreement and (ii) no Event of Default occurred and was continuing;
(j) the declaration and payment of dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to 6% per annum of the net proceeds received by or contributed to the Parent Borrower in or from any such public offering, other than public offerings with respect to the Parent Borrower’s common stock registered on Form S–4 or Form S–8;
(k) payments made or expected to be made by the Parent Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hl) in addition to the foregoing Restricted Payments and so long as the Payment Conditions have been satisfied, the Parent Borrower may make additional Restricted Payments;
(m) beginning on the fifth anniversary of the date of issuance of any Qualified Holding Company Debt so long as no Default shall have has occurred and be continuing or would result therefromis continuing, the Parent Borrower may make additional pay dividends to Holdings so long as the proceeds thereof are promptly applied to fund cash interest payments or “AHYDO catch-up” payments on Qualified Holding Company Debt, so long as on a Pro Forma Basis after giving effect to the payment of such dividends, the Senior Secured Leverage Ratio for the most recently ended Test Period would not be greater than 4.5 to 1.0; and
(n) other Restricted Payments in an aggregate amountthat, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v7.02(aa) and payments made pursuant to Section 7.12(a)(i)(E)) , do not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of aggregate at any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time outstanding $75,000,000.
Appears in 1 contract
Sources: Credit Agreement (Biolectron, Inc.)
Restricted Payments. Declare The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to declare or make, directly or indirectly, any Restricted Payment, except:
: (a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to or any other Restricted Subsidiaries and Subsidiary (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
); (b) any member of the Borrower and each Restricted Subsidiary Group may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
; (c) [reserved]; (d) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to consummate the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions ; (whether actual, contingent or potential) with respect thereto;
(de) to the extent constituting Restricted Payments, the Borrower and members of the Restricted Subsidiaries Group may enter into and consummate transactions (i) make any Investment expressly permitted by any provision of Section 7.02 (other than Sections 7.02(e)(v) and 7.02(m)), (ii) transfer assets in respect of the elimination of Equity Interests resulting from 156 the consummation of a merger, dissolution, liquidation or consolidation in accordance with Section 7.04 or 7.08 other than (iii) make transactions permitted by Section 7.08(f7.08(e) or 7.08(j);
; (ef) repurchases of Equity Interests in any member of the Borrower or any Restricted Subsidiary Group deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options or warrants;
; (fg) any member of the Restricted Group may (i) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or any direct or indirect parent thereof held by any present or former employee, officer, director or consultant thereof or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent thereof to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director or consultant in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of Holdings or any direct or indirect parent thereof or of the Borrower or any Restricted Subsidiary; provided that the aggregate amount of Restricted Payments made pursuant to this Section 7.06(g) and all loans and advances made pursuant to Section 7.02(m) made in lieu of any such permitted Restricted Payment shall not exceed $30,000,000 in any fiscal year; provided, further, that that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from future, present or former employees, directors, managers or consultants of the Borrower, or any direct or indirect parent of the Borrower or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant, in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Agreement; (h) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings (or may make a corresponding distributions, loans or advances to any direct or indirect parent entity) in an aggregate amount not to exceed the Cumulative Credit immediately prior to the time of the making of such Restricted Payment; provided that, with respect to any Restricted Payment made pursuant to this Section 7.06(h), no Event of Default shall have occurred and be continuing or would result therefrom; (i) the Borrower may make Restricted Payments (or may make distributions, loans or advances to any direct or indirect parent thereof:
) (without duplication): (i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofA) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not business and attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Restricted Subsidiaries and (B) Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
; 157 (iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) thereof to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate or other organizational existence;
; (iii) for any taxable period in which the Borrower and/or any of its Subsidiaries are a member of a consolidated or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were the only members of a consolidated or similar income tax group of which the Borrower is the common parent (it being understood and agreed that if the Borrower or any Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided, further, that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated or similar taxes; (iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.02 (if the recipient thereof is not Holdings, assuming that such recipient were subject to Section 7.02); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent shall, immediately following the closing thereof, cause cause
(1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11; (v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)its Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) reasonable and customary fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by Holdings (or any direct or indirect parent thereof) not prohibited by this Agreement;
Agreement that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and (gvii) the proceeds of which shall be used to make payments permitted under Sections 7.08(e), 7.08(h), and 7.08(j) (but only to the extent such payments have not been and are not expected to be made by the Borrower may pay for or a Restricted Subsidiary); (j) payments made or expected to be made by any member of the repurchase, retirement Restricted Group in respect of withholding or other acquisition payroll and other similar Taxes payable by any present or retirement for value former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such 158 payments including deemed repurchases in connection with the Borrower exercise of stock options or the vesting or settlement of other equity-based awards; (k)
(i) any Restricted Payment by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee other direct or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director indirect parent entity of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses directly attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by 6.0% of the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the aggregate proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts Initial Public Offering in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)fiscal year.
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries may declare and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments pay dividends and other distributions ratably with respect to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdingsin exchange for, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) out of the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidatedreceived from, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses concurrent issuance (other than to Affiliatesa Subsidiary) related of additional Equity Interests of the Borrower (other than Disqualified Stock);
(c) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Stock); 860627.02-LACSR02A - MSW
(d) the Borrower and each Restricted Subsidiary may consummate (i) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represents a portion of the exercise or exchange price thereof and (ii) any unsuccessful equity repurchases, redemptions or debt offering permitted by this Agreementother acquisitions or retirements for value of Equity Interests made or deemed to be made in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights;
(e) the Borrower and each Restricted Subsidiary may make payments of cash in lieu of issuing fractional Equity Interests;
(f) the Borrower and each Restricted Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable Requirements of Law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 6.01 or Section 6.08, as applicable;
(g) the Borrower and each Restricted Subsidiary may pay for the repurchasemake Restricted Payments with Net Cash Proceeds received from one or more Fayetteville Transactions, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement so long as (including any stock subscription or shareholder agreementi) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments Restricted Payments made pursuant to this clause (fg) does since the Effective Date shall not exceed in any fiscal year of the Borrower $15,000,000 750,000,000, (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without ii) no Loans are outstanding both immediately before and after giving effect to the following provisoany such Restricted Payment, (iii) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent after giving pro forma effect to the consummation making of a Qualifying IPOany such Restricted Payment and any contemporaneous Redemption of Existing Senior Notes pursuant to Section 6.10(c);
, the Total Leverage Ratio will not be greater than 3.50 to 1.00, (hiv) so long as such Restricted Payments are made no later than the Fayetteville Proceeds Deadline and (v) at the time of and immediately after giving pro forma effect to the making of any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromcontinuing; and
(lh) the declaration Borrower and payment of dividends and distributions on the Equity Interests of any Receivables Management each Restricted Subsidiary to holders of minority interests substantially consistent with past practice may make other Restricted Payments so long as, after giving pro forma effect to the extent making of such holder (or its affiliates) participates in Restricted Payments, the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)Payment Conditions are satisfied.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower may (i) redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with made on the Transaction (including any amounts Closing Date to be paid under, or contemplated by, consummate the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoTransaction;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its or any Restricted Subsidiaries Subsidiary may pay (or make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to allow any direct or indirect parent thereof:
thereof (iincluding Holdings) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns pay) for the relevant jurisdiction repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower or any such direct or indirect parent thereof (including Holdings) by any future, present or former employee, director or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director or consultant of the Borrower or any such direct or indirect parent thereof (including Holdings) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $30,000,000 subsequent to the consummation of a Qualifying IPO of Holdings (or any direct or indirect parent thereof, as the case may be) attributable (with unused amounts in any calendar year being carried over to Holdingssucceeding calendar years subject to a maximum (without giving effect to the following proviso) of $20,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO of Holdings or any direct or indirect parent thereof, as the case may be)); provided, further that such amount in any calendar year may be increased by an amount not to exceed
(i) the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower and, to the extent contributed to the Borrower, Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii) the Net Cash Proceeds of key man life insurance policies received by Holdings (to the extent contributed to the Borrower), the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f); and provided further that cancellation of Indebtedness owing to Holdings or the Borrower from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further, that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (f) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as if of the Closing Date.
(g) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) so long as the Borrower is treated as a pass-through entity of which such direct or indirect parent is an owner or a partner, or is a member of a consolidated or combined group that includes such direct or indirect parent, for U.S. federal, state or local income tax purposes, the Borrower may pay to such direct or indirect parent the amount of U.S. federal, state and local income taxes, as the case may be, incurred by such direct or indirect parent but only to the extent such income taxes are attributable to the income of the Borrower and its Subsidiaries filed separately;(excluding any Subsidiaries that are neither a pass-through entity nor a member of a consolidated or a combined group that includes a direct or indirect parent); provided that the amount of such payments in any fiscal year does not exceed the amount that the Borrower and such Subsidiaries would have been required to pay in respect of such federal, state and local taxes for such fiscal year if the Borrower and such Subsidiaries were members of a consolidated or combined group of which the Borrower was the common parent corporation.
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries);
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay the Borrower’s pro rata share of any franchise taxes and other fees, taxes and expenses required to maintain its (or so long as its direct or indirect parents directly or indirectly own no other assets than the Equity Interest in the Borrower any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by it or contributed to the Borrower or its a Restricted Subsidiaries Subsidiary or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its a Restricted Subsidiaries Subsidiary in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and6.11;
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(gh) the Borrower or any Restricted Subsidiary may (a) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i) Restricted Payments so long as at the time of such Restricted Payments (after giving Pro Forma Effect to such additional Restricted Payments) the Total Leverage Ratio shall be no greater than 3.50 to 1.00;
(j) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(k) the declaration and payment of dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Closing Date, of up to the greater of (i) 6% per annum of the net proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S–4 or Form S–8 and (ii) the amount of the Available Amount that is Not Otherwise Applied;
(l) payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the Borrower or foregoing) and any repurchases of its Subsidiaries pursuant to any employee or director equity plan, employee or director Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)options;
(hm) Restricted Payments in an amount equal to any reduction in taxes actually realized by the Borrower and the Restricted Subsidiaries in the form of refunds or credits or from deductions when applied to offset income or gain as a direct result of (i) Transaction Expenses, (ii) commitment and other financing fees or (iii) severance, change in control and other compensation expense incurred in connection with the exercise, repurchase, rollover or payout of stock options or bonuses, in each case in connection with the Transaction;
(n) the redemption in full of the Senior Subordinated Notes on the First Restatement Date; and
(o) in addition to the foregoing Restricted Payments and so long as no Default shall have occurred and be continuing or would result therefromtherefrom and the Senior Secured Leverage Ratio (after giving Pro Forma Effect to such additional Restricted Payments) shall be no greater than 4.25 to 1.00, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i1) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv7.12(a)(v) and (ii2) loans and advances to any direct or indirect parent of the Borrower made pursuant to Section 7.02(m7.02(n) in lieu of Restricted Payments permitted by this clause (ho), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred greater of $50,000,000 and be continuing or would result therefromtwo percent (2%) of Total Assets, the Borrower may make additional Restricted Payments in an amount (together with ii) the aggregate amount of Investments made pursuant the Net Cash Proceeds of Permitted Equity Issuances contributed to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower that are Not Otherwise Applied and (iii) without duplication of clause (ii) above, the Restricted Subsidiaries in amount of the form of refunds or deductions realized in connection with Available Amount that is Not Otherwise Applied. Notwithstanding anything to the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefromcontrary herein, the Borrower may will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Payment consisting of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as proceeds from a lender or financier under any financing provided to a Receivables Management Subsidiary)Qualified Securitization Transaction.
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Restricted Payments. Declare No Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrowers and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments that is not wholly-owned directly or indirectly by the U.S. Borrower, to the U.S. Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Borrowers and each the Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) the Borrowers may make additional Restricted Payments so long as, on a pro forma basis after giving effect thereto, the Distribution Payment Conditions are satisfied at such time;
(e) to the extent constituting Restricted Payments, the Borrower Borrowers and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower Borrowers (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrowers deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrowers and the Restricted Subsidiaries may pay (or make Restricted Payments to allow such Borrower and or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of a Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or such Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or such Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $30,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to a Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Specified Equity Contributions) of any of such Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, such Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrowers or their Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrowers may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (i) $215,000,000 and Holdings (ii) 3.00% of Total Assets;
(i) the Borrowers may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the U.S. Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the U.S. Borrower and its Restricted Subsidiaries and, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Borrowers and its their Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which a Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of a Borrower is the common parent or (B) in which a Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of such Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the such Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the such Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to such Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the U.S. Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the U.S. Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the U.S. Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the U.S. Borrower and its Restricted Subsidiaries;
(gj) the Borrower Borrowers or any Restricted Subsidiary may (i) pay for the repurchase, retirement or other acquisition or retirement for value cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(k) after a Qualified IPO, (i) any Restricted Payment by the Borrowers or any other direct or indirect parent of any Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed up to the sum of (A) up to 6% per annum of the net proceeds received by (or contributed to) any Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) the amount of Restricted Payments permitted by Section 7.06(l)(ii)(B) under the Cash Flow Credit Agreement (as in effect on the Second Restatement Effective Date); provided, that, immediately before and after giving pro forma effect to any such Restricted Payment pursuant to clause (B), the Non-Guarantor Payment Conditions are met;
(l) payments made or expected to be made by a Borrower or any of the Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the Borrower or any exercise of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement options;
(including any stock subscription or shareholder agreementm) with any employee or director of Restricted Payments permitted by Section 7.06(n) under the Borrower or any of its SubsidiariesCash Flow Credit Agreement (as in effect on the Second Restatement Effective Date); provided, howeverthat, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without immediately before and after giving pro forma effect to any such Restricted Payment, the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)Non-Guarantor Payment Conditions are met;
(hn) so long as the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrowers or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary owns no Default shall have occurred and be continuing or would result therefrom, assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the Borrower may make additional primary assets of which are cash and/or Cash Equivalents)); and
(o) Restricted Payments in an aggregate amount, together with the aggregate amount of that are made (i) prepayments, redemptions, purchases, defeasances in an amount equal to the amount of Excluded Contributions previously received and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) Not Otherwise Applied and (ii) loans without duplication with clause (i), in an amount equal to the net proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions. For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the U.S. Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06 and advances will only be required to include the amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations could be classified as incurred under a Payment Conditions basket (giving pro forma effect to the making of such portion of such Restricted Payment), the U.S. Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as having been made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed such Payment Conditions basket and thereafter the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as remainder of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long Restricted Payment as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments having been made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds one or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds more of the issuance other clauses of Qualified Equity Interests this Section 7.06 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of the Borrower;
(k) if the Borrower determination, then such reclassification shall become the Subsidiary of Holdings, so long as no Default shall be deemed to have automatically occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include at such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)time.
Appears in 1 contract
Restricted Payments. Declare Pay or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to its other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any of its other Restricted Subsidiary Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
); (b) the Borrower may (i) redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby or (ii) the Borrower and each of its Restricted Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
; provided that after giving effect to any action pursuant to clause (ci) Restricted Payments in connection with the Transaction and (including any amounts to be paid under, or contemplated byii) above, the Transaction Agreement) and same percentage of the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (or the respective Restricted Subsidiary are pledged pursuant to the Collateral Documents as were so pledged immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions thereto; (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Restricted Payments. (a) Declare or make, directly or indirectly, any Restricted Payment, except:or incur any obligation (contingent or otherwise) to do so unless at the time of and after giving effect thereto on a Pro Forma Basis, (i) the Consolidated Leverage Ratio as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 does not exceed 2.50x and (ii) no Default has occurred and is continuing.
(b) Notwithstanding the foregoing (and provided that in the case of clauses (iv), (v), (vii) and (x), no Default shall have occurred and be continuing at the time of any action described in such clause or would result therefrom):
(i) (a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and Parent or any other Loan Party, (b) any Subsidiary of the Parent that is not a Loan Party may make Restricted Payments to any other Restricted Subsidiaries Subsidiary of the Parent that is not a Loan Party and (iic) each nonany non wholly-wholly owned Restricted Subsidiary of the Parent may make Restricted Payments to the Borrower and Parent or any other Restricted Subsidiary and to each any other owner Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interests Interest in respect of which such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsPayment is being made;
(bii) the Borrower Parent and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (including options and warrants) of such Person;
(iii) except to the extent the Net Cash Proceeds thereof are required to be applied to the prepayment of the Loans pursuant to Section 2.05(b)(iii), the Parent and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) the Parent may make any delivery or payment in connection with, or as part of, the termination or settlement of a Warrant Transaction or the entry into a Convertible Note Hedge;
(v) the Parent may (x) pay interest on, (y) deliver its common stock upon conversion of and (z) so long as the Liquidity Measure, determined both before and immediately after giving effect to such payment, is not less than $150,000,000, make cash payments in respect of the maturity, conversion or mandatory repurchase or redemption of (A) the Convertible Senior Notes in accordance with the terms of the Convertible Senior Notes Indenture as in effect on the date hereof, (B) any Replacement Convertible Notes in accordance with the terms of the Replacement Convertible Notes Indenture and (C) any Additional Convertible Notes in accordance with the terms of the Additional Convertible Notes Indenture.
(vi) the Parent may make a mandatory repurchase or redemption of (A) the Convertible Senior Notes in accordance with the terms of the Convertible Senior Notes Indenture as in effect on the date hereof, (B) any Replacement Convertible Notes in accordance with the terms of the Replacement Convertible Notes Indenture and (C) any Additional Convertible Notes in accordance with the terms of the Additional Convertible Notes Indenture, in each case with the proceeds of (i) a substantially simultaneous issuance of Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;the Parent or (ii) Indebtedness permitted under Section 7.02(s) or Section 7.02(t).
(cvii) Restricted Payments in connection with (A) the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) repurchase of issued and the fees and expenses related thereto owed to Affiliates, including any payment to holders of outstanding Equity Interests of the Borrower Parent, including through an accelerated share repurchase or similar transaction, in an aggregate purchase price amount for all such repurchases not to exceed $300,000,000; and (immediately prior B) in addition to the repurchase permitted under the foregoing clause (A), the repurchase of issued and outstanding Equity Interests of the Parent, including through an accelerated share repurchase or similar transaction, if at the time of and after giving effect thereto on a Pro Forma Basis, the Consolidated Leverage Ratio as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoSection 6.01 shall be less than 2.50x;
(dviii) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries Parent may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(f);
(e) make repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fix) the Borrower Parent and its Restricted Subsidiaries may make Restricted Payments to Holdings(a) purchase their Equity Interests from any of their current or former officers, and Holdings may make a corresponding Restricted Payment directors, employees, managers or consultants upon the death, disability, resignation, retirement or termination of employment of such officers, directors, employees, managers or consultants pursuant to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidatedequity plan, combined, unitary employee or affiliated returns for the relevant jurisdiction of Holdings (direct or stock option plan or any direct other employee or indirect parent thereofdirector incentive plan and (b) attributable make repurchases of Equity Interests from current or former officers, directors, employees, managers or consultants in net settlement of equity-based incentives, including, without limitation, with respect to Holdingsshare withholding for tax obligations, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businesscollectively, in an aggregate amount not to exceed $3,000,000 10,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement)year; and
(vx) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or Parent and each Subsidiary may make any direct or indirect parent thereof) to pay (or to make other 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 not otherwise permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the hereunder in an aggregate amount of payments made pursuant not to this clause (f) does not exceed $150,000,000 in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefromyear; provided that if during such fiscal year, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made Consolidated Leverage Ratio for any fiscal quarter during such fiscal year for which financial statements have been delivered pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) 6.01 shall be less than 2.50x, the full $150,000,000 shall thereafter be available in lieu of such fiscal year notwithstanding Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (having been made and credited against such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice prior to the Administrative Agent stating that the Borrower will make delivery of such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)financial statements.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries and (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments with respect to any class or type of Equity Interests, to (i) the Borrower and any other or such Restricted Subsidiary and (ii) to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant such class or type of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) the Borrower and its Restricted Subsidiaries may make Restricted Payments in connection with necessary (i) consummate the Transaction Transactions and (including any amounts to be paid under, or contemplated by, the Transaction Agreementii) and the fees and expenses related thereto owed to Affiliates, including satisfy any payment to holders of Equity Interests of obligations owing under the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretoAcquisition Agreement;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 7.02 (other than Section 7.08(f7.02(e) and (l), Section 7.04, Section 7.05 (other than Section 7.05(e)) or Section 7.08 (other than Section 7.08(u));
(e) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings:
(i) the proceeds of which will be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) the Tax liability for each relevant jurisdiction in respect of 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 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) such entities’ operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, 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 and subject to the proviso in clause (e)(viii) below;
(iii) the proceeds of which shall be used by Holdings to pay (or to make a payment to any direct or indirect parent of Holdings to enable it to pay) franchise Taxes and other fees, Taxes and expenses required to maintain the corporate existence of Holdings or any direct or indirect parent thereof;
(iv) 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 held by any future, present or former employee, director, officer, member of management or consultant of Holdings or any direct or indirect parent thereof, or any of its Subsidiaries (or any Controlled Investment Affiliate or Immediate Family Member thereof), 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 $575,000 (which purchase may be paid by the issuance of Indebtedness permitted by Section 7.03(t)) in any fiscal year;
(v) the proceeds of which shall be used by Holdings to finance (or to make a Restricted Payment to any direct or indirect parent of Holdings 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) Holdings or the applicable parent company thereof shall, 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 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 (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 Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12;
(vi) the proceeds of which shall be used by Holdings to make (or to make a Restricted Payment to any direct or indirect parent of Holdings to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any direct or indirect parent thereof in an aggregate amount not to exceed $115,000; 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 or any direct or indirect parent thereof to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering of the Borrower not prohibited by this Agreement (in the case of any such parent or indirect parent, only to the extent such parent or indirect parent does not hold material assets other than those relating to the Borrower and its Subsidiaries or their respective businesses);
(viii) 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 extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; provided the aggregate amount paid to or for the account of parent companies of Holdings pursuant to this clause (e)(viii) and clause (e)(ii) above shall not exceed $5,750,000 in any fiscal year; 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 its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that does not exceed the sum of (i) the greater of (x) $8.625,000 and (y) 1.725% 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 Additional Financings pursuant to Section 7.13(i)) and (ii) the Cumulative Amount as in effect immediately prior to the time of making of such Restricted Payment; provided that, in the case of any Restricted Payment under this Section 7.06(f) made with the Cumulative Amount, the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenants set forth in Section 7.10 after giving effect to such Restricted Payment and the use of proceeds thereof;
(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;
(fh) following the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to consummation of the first public offering of the Borrower’s common stock or the common stock of any direct or indirect parent thereof:
(i) holding company of the proceeds of which will be used to pay Borrower after the tax liability to each relevant jurisdiction Closing Date, payments made by the Borrower or any Restricted Subsidiary in respect of consolidatedwithholding or similar Taxes in connection with the exercise of stock options with respect to the Equity Interests which are the subject of such public offering, combinedpayable by any future, unitary present or affiliated returns for former officers, directors, members of management, consultants and employees of the relevant jurisdiction of Holdings Borrower (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct Restricted Subsidiaries (or indirect parents’any spouse, former spouse, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) corporate existenceand any repurchases of such Equity Interests in consideration of such payments including deemed repurchases;
(ivi) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement[Reserved];
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(hj) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests Borrower’s common stock (or the payment of dividends to any direct or indirect parent entity of the Borrower to fund a payment of dividends on such entity’s common stock), following the consummation of the first public offering of the Borrower’s common stock or the common stock of any Receivables Management of its direct or indirect parent companies after the Closing Date, of up to 6% per annum of the net cash proceeds received by or contributed to the Borrower in or from any such public offering, other than public offerings with respect to the Borrower’s common stock registered on Form S-4 or Form S-8; and
(k) payments of compensation (other than the compensation referred to in Section 7.06(e)(iv)) made by the Borrower or any Restricted Subsidiary to holders current or former officers, directors, members of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates management, consultants and employees in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)ordinary course of business.
Appears in 1 contract
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Company, and to other Restricted Subsidiaries and of the Company (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.00:1.00;
(e) to the extent constituting Restricted Payments, the Borrower Company and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) or 7.08(j));
(ef) repurchases of Equity Interests in the Borrower Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager, director, member, partner, independent contractor or consultant stock option plan or benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $37,500,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company or any Subsidiary Guarantor, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors, members, partners, independent contractors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of Equity Interests of the Company or any of its direct or indirect parent companies pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iv) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) through (iii) of this Section 7.06(g);
(h) the Company may make Restricted Payments in an aggregate amount not to Holdingsexceed the sum of (i), when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), the greater of (a) $200,000,000330,000,000 and Holdings (b) 3.50% of Total Assets plus (ii) the Cumulative Credit on such date; provided that, in the case of clause (ii), with respect to usage of any portion of the Builder Basket, no Event of Default under Sections 8.01(a) or (f) has occurred and is continuing (or would result therefrom);
(i) the Company may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Company:
(i) the proceeds of which will be used to pay the its operating or organizational costs and other costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereofreporting matters) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Company and its Restricted Subsidiaries, any costs, expenses and liabilities incurred in an aggregate amount not connection with any litigation or arbitration attributable to exceed $3,000,000 in any fiscal year plus the ownership or operations of the Company and the Restricted Subsidiaries, Transaction Expenses and any reasonable and customary indemnification claims made by directors directors, managers or officers of Holdings (or any direct or indirect such parent thereof) attributable to the ownership or operations of the Borrower Company and its SubsidiariesRestricted Subsidiaries and listing fees and other costs and expenses attributable to being a publicly traded company;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower Company or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 to be complied with6.11, within (C) such parent company and its Affiliates (other than the time periods specified therein (Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent required the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall be deemed to be made by the Collateral and Guarantee RequirementCompany or such Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p); and);
(v) if a the proceeds of which shall be used to pay customary salary, bonus, severance, indemnity and other benefits payable to future, present or former officers, employees, managers, members, partners independent contractors or consultants of Holdings Election Event shall occuror any direct or indirect parent company of Holdings to the extent such salaries, bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted offering, financing transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this AgreementAgreement by Holdings (or any direct or indirect parent thereof), whether or not successful, that is directly attributable to the operations of the Company and its Restricted Subsidiaries; and
(vii) amounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, in each case, any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for Company or any of the repurchase, retirement Restricted Subsidiaries in respect of required withholding or other acquisition similar Taxes payable upon exercise or retirement for value vesting of Equity Interests of the Borrower by any future, present or former employee employee, director, manager, officer, partner, independent consultant or director consultant of the Borrower Company or any Restricted Subsidiaries and any repurchases of its Subsidiaries pursuant Equity Interests deemed to any employee occur upon the exercise or director equity planvesting of stock options, employee warrants or director the issuance of restricted stock option plan units or any other employee or director benefit plan or any agreement (including any similar stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)based awards;
(hk) so long as no Default shall have occurred and be continuing the Company or would result therefrom, the Borrower any Restricted Subsidiary may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepaymentspay cash in lieu of fractional Equity Interests in connection with any dividend, redemptionsdistribution, purchasessplit, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) merger, consolidation, amalgamation or combination thereof or any Permitted Acquisition and (ii) loans honor any conversion request by a holder of convertible Indebtedness and advances made pursuant to Section 7.02(m) make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6.0% per annum of the last day of any Test Period being less net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than 5.0 to 1.0a public sale constituting an Excluded Contribution) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) per annum not to exceed any reduction 6.0% of Market Capitalization;
(m) distributions or payments of Securitization Fees, sales, contributions, distributions and other transfers of Securitization Assets and purchases of Securitization Assets, in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized each case in connection with the Transactionsa Qualified Securitization Financing;
(jn) so long payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as no Default shall have occurred a result of, exercise of appraisal rights and be continuing the settlement of any claims or would result therefromaction (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of assets permitted by Section 7.02;
(o) the Borrower may make Restricted Payments with the proceeds distribution, by dividend or otherwise, of the issuance of Qualified Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the BorrowerCompany or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents;
(kp) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, Restricted Payments that the Borrower shall have elected to include such amounts are made (i) in its Consolidated Interest Expense by delivering an irrevocable written notice amount equal to the Administrative Agent stating that amount of Excluded Contributions previously received since the Borrower will make such dividends and distributions Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the “Restricted Payments Interest Expense Election”) Net Proceeds from a Disposition in respect of property or assets acquired after the Indebtedness specified in Closing Date, if the acquisition of such notice only so long as no Default shall have occurred and be continuing property or would result therefromassets was financed with Excluded Contributions; and
(lq) the declaration and payment of dividends and distributions on any dividend or other distribution or the Equity Interests consummation of any Receivables Management Subsidiary to holders irrevocable redemption within 60 days after the date of minority interests substantially consistent declaration of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with past practice to the extent such holder (or its affiliates) participates provisions of this Agreement. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business (including as event that a lender Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Company may, in its sole discretion, classify or financier under later divide, classify or reclassify all or a portion of such Restricted Payment or any financing provided portion thereof in a manner that complies with this Section 7.06 and will only be required to a Receivables Management Subsidiary)include the amount and type of such Restricted Payment in one or more of the above clauses.
Appears in 1 contract
Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments (i) to the Borrower and to other Restricted Subsidiaries and (ii) each in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; provided that no Restricted Payment of the type described in preceding clause (ii) (other than pursuant to required tax distributions) shall be made at any time an Event of Default has occurred and is continuing;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; provided that to the extent required pursuant to the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[reserved];
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (d);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings or any direct or indirect parent thereof by any future, present or former employee employee, manager or director of the Borrower or any of its Restricted Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Related Persons) upon the death, disability or termination of employment of such persons or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager or director of the Borrower or any of its SubsidiariesRestricted Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Related Persons); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fe) does not exceed in any fiscal year of after the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOClosing Date, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together when combined with the aggregate amount of all cash payments (whether principal or interest) made by the Borrower in respect of any promissory notes pursuant to Section 7.03(h) after the Closing Date, shall not exceed $1,000,000; and
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings:
(i) prepayments, redemptions, purchases, defeasances the proceeds of which shall be used by Holdings to pay franchise taxes and other payments in respect of Junior Financings made pursuant fees, taxes and expenses required to Section 7.13(a)(iv) and maintain its limited liability company existence; and
(ii) of up to $100,000, per year (in the aggregate with any loans and advances made to Holdings pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by reliance on this clause (hf)(ii)), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower which shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used by Holdings to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)pay corporate overhead expenses.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(a) (i) each Restricted Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the Borrower and to other Restricted Subsidiaries and (ii) each non-wholly owned Restricted Subsidiary may make Restricted Payments to the Borrower and any other Restricted Subsidiary and to each other owner type of Equity Interests Interest in respect of which such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity InterestsPayment is being made;
(b) the Borrower Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03Interests) of such Person;
(c) Restricted Payments Holdings and each Subsidiary may pay withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders repurchase of Equity Interests of or the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect theretostock options;
(d) Holdings may make other Restricted Payments so long as (i) no Event of Default shall have occurred and be continuing and (ii) after giving effect to such Restricted Payment on a Pro Forma Basis the Loan Parties are in compliance with the financial covenant set forth in Section 7.11;
(e) 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 7.04 Sections 7.03, 7.04, 7.05 or 7.08 (in each case, other than by reference to this Section 7.08(f7.06);; and
(ef) repurchases redemptions, repurchases, retirements or other acquisitions of Equity Interests in the Borrower or any Restricted Subsidiary Interest deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of on the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make on a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)cashless basis.
Appears in 1 contract
Sources: Credit Agreement (nCino, Inc.)
Restricted Payments. Declare or makeNeither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted Payment, except:
: (a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and Subsidiary, as compared to each the other owner owners of Equity Interests of in such Restricted Subsidiary Subsidiary, on a pro rata or more than pro rata basis based on their relative ownership interests of the relevant class of Equity Interests;
); (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
; (c) Restricted Payments made on or after the Closing Date in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to AffiliatesTransactions, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actualin connection with the Acquisition or to satisfy indemnity or other similar obligations or any other earnouts, contingent or potential) with respect thereto;
purchase price adjustments, working capital adjustments and any other payments under the Purchase Agreement; (d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.00 to 1.00; (e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 other than Section 7.08(f);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower by any future, present or former employee or director of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivSections 7.08(e) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (hj), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount);
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).
Appears in 1 contract
Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments (i) to the Borrower and to other Restricted Subsidiaries and (ii) each in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests, provided that no Restricted Payment of the type described in preceding clause (ii) (other than pursuant to required tax distributions) shall be made at any time a Default or an Event of Default has occurred and is continuing;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person, provided that to the extent required pursuant to the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to the Borrower and any other Subsidiary and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (d);
(ed) repurchases so long as no Event of Equity Interests in Default under Section 7.11, 8.01(a), 8.01(f) or 8.01(g) then exists or would result therefrom, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of allow Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdings or any direct or indirect parent of Holdings by any future, present or former employee employee, manager or director of the Borrower or any of its the Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Related Persons) upon the death, disability or termination of employment of such persons or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager or director of the Borrower or any of its Subsidiaries; providedthe Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Related Persons) and (ii) allow Holdings to make cash payments in respect of any Shareholder Subordinated Notes pursuant to Section 7.03(h), however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fd) does not exceed in any fiscal year of after the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPOClosing Date, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together when combined with the aggregate amount of all cash payments (iwhether principal or interest) prepayments, redemptions, purchases, defeasances and other payments made by Holdings in respect of Junior Financings made any Shareholders Subordinated Notes pursuant to Section 7.13(a)(iv7.03(h) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h)after the Closing Date, shall not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;750,000; and
(ie) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with to Holdings (i) the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower which shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used by Holdings to fund the payment of interest pay franchise taxes and fees on Indebtedness of Holdings permitted by Section 7.16; providedother fees, that the Borrower shall have elected taxes and expenses required to include such amounts in maintain its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions limited liability company existence, (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lii) the declaration proceeds of which shall be used by Holdings to pay its audit expenses, and payment (iii) of dividends and distributions on up to $150,000 per year, the Equity Interests proceeds of any Receivables Management Subsidiary which shall be used by Holdings to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)pay other corporate overhead expenses.
Appears in 1 contract
Restricted Payments. Declare The Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Lead Borrower, and to other Restricted Subsidiaries and of the Lead Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Lead Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto[Reserved];
(d) to the extent constituting Restricted Payments, the Lead Borrower (or any Parent) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Lead Borrower or any Restricted Subsidiary of the Lead Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, or warrantswarrants or other equity-based awards;
(f) the Lead Borrower and each Restricted Subsidiary may (i) pay (or may make Restricted Payments to allow any Holdco or any Parent to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Lead Borrower or any other such Parent) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any other Parent) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow any Holdco or any Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Lead Borrower or any Parent) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholder’s agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Lead Borrower or any Parent) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $30,000,000 in any calendar year; provided, further, that unused amounts in any calendar year may be used in the next two succeeding years; provided, further, that such amount in any calendar year may further be increased by an amount not to exceed:
(i) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”; and
(ii) the Net Proceeds of key man life insurance policies received by the Lead Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that that cancellation of Indebtedness owing to the Lead Borrower or any Restricted Subsidiary from members of management of the Lead Borrower, any of the Lead Borrower’s Parents or any of the Lead Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Lead Borrower’s Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Lead Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $125,000,000 and 4.25% of Total Assets, as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(vi)) plus (y) the Cumulative Credit at such time (provided that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrowers, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt);
(h) the Lead Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereof:Parent;
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of businessbusiness and attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) such Parent attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (A) franchise taxes and other fees, taxes and expenses required to maintain its (or any of its Parents’) corporate existence or (B) costs and expenses (including Public Company Costs) incurred by such Parent in connection with such Parent being a public company, including costs and expenses relating to ongoing compliance with federal and state securities laws and regulations, SEC rules and regulations and the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002;
(iii) for any taxable period in which the Lead Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income or similar tax group of which a direct or indirect parents’) corporate existence;
parent of Lead Borrower is the common parent (iv) if a Holdings Election Event shall occur“Tax Group”), to finance pay federal, foreign, state and local income or similar taxes of such Tax Group that are attributable to the taxable income of the Lead Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay in respect of federal, foreign, state and local income taxes in the aggregate if such entities were corporations paying taxes separately from any Investment Tax Group at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if the Lead Borrower or Subsidiary pays any such federal, foreign, state or local income taxes directly to such taxing authority, that a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (iii)); provided further that the permitted payment pursuant to this clause (iii) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by any Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes for such taxable period or any previous taxable period ending after the date hereof and not previously taken into account for purposes of calculating the limitation in this proviso;
(iv) to finance any Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 made by the Lead Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such Parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Lead Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Lead Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of any Holdco or any Parent and any payroll, social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Lead Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Section 7.08(g) and (k) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementLead Borrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) Holdco to pay (or to make Restricted Payments to allow any direct or indirect parent thereof Parent to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreementany Holdco (or any Parent) that is directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by any Holdco (or any Parent);
(gi) payments made or expected to be made by any Holdco, the Lead Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the Borrower or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(ivforegoing) and (ii) loans and advances made pursuant to Section 7.02(m) any repurchases of Equity Interests in lieu consideration of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized payments including deemed repurchases in connection with the Transactionsexercise of stock options or the vesting or settlement of other equity-based awards;
(j) so long as no Default shall have occurred and be continuing dividends on the common stock or would result therefrom, the Borrower may make Restricted Payments with the proceeds common equity interests of the issuance of Qualified Equity Interests Lead Borrower or any Parent in an aggregate amount per annum not to exceed an amount equal to 6% of the Borrowernet proceeds received by (or contributed to) the Lead Borrower from any Qualified IPO (including the Initial Public Offering);
(k) if the Lead Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect any of the Indebtedness specified Restricted Subsidiaries may pay cash in such notice only so long as no Default shall have occurred and be continuing lieu of the issuance of fractional Equity Interests in connection with any dividend, split or would result therefromcombination thereof or any Permitted Acquisitions; and
(l) additional Restricted Payments so long as immediately after giving effect to such Restricted Payment, (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the declaration Total Net Leverage Ratio calculated on a Pro Forma Basis is no greater than 2.00 to 1.00, and payment satisfaction of dividends and distributions on such test shall be evidenced by a certificate from a Responsible Officer of the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent Lead Borrower demonstrating such holder (or its affiliates) participates satisfaction calculated in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)reasonable detail.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Restricted Payments. Declare Neither the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.50 to 1.00;
(e) to the extent constituting Restricted Payments, the Borrower and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.08 (other than Section 7.08(fSections 7.08(e) and (j));
(ef) repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $30,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000 subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(g);
(h) the Borrower may make Restricted Payments in an aggregate amount not to Holdingsexceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv), (x) the greater of (i) $215,000,000 and Holdings (ii) 3.00% of Total Assets, plus (y) so long as no Default has occurred and is continuing or would result therefrom, the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph; provided that, to the extent any such Restricted Payment is made by utilizing clause (b) of the definition of the Cumulative Credit, the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis shall not exceed 6.00 to 1.00;
(i) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries and, Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings (or any direct or indirect such parent thereof) to pay franchise taxes Taxes and other fees, taxes Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Borrower is the common parent or (B) in which the Borrower is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) if a Holdings Election Event shall occur, to finance any Investment that would be permitted to be made pursuant to Section 7.027.02 if such parent were subject to such Section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which shall be used to be complied withpay customary salary, within the time periods specified therein (bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent required by such salaries, bonuses and other benefits are attributable to the Collateral ownership or operation of the Borrower and Guarantee Requirement)the Restricted Subsidiaries; and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries;
(gj) payments made or expected to be made by the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests any of the Borrower by Restricted Subsidiaries in respect of required withholding or similar non-US Taxes with respect to any future, present or former employee employee, director, manager or director consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(k) the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of its Subsidiaries pursuant to fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or Permitted Acquisition and (ii) honor any agreement (including any stock subscription or shareholder agreement) conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any employee or director of such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year other direct or indirect parent of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO);
(h) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances pay listing fees and other payments in respect of Junior Financings made pursuant costs and expenses attributable to Section 7.13(a)(iv) being a publicly traded company which are reasonable and customary and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed up to the sum of (A) $75,000,000 (such amount up to be increased to $100,000,000 upon the Total Leverage Ratio as 6% per annum of the last day of any Test Period being less than 5.0 to 1.0net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) Restricted Payments in an aggregate amount per annum not to exceed (x) 3.507.00% of Market Capitalization, if, on a Pro Forma Basis after giving effect to the Cumulative Growth Amountpayment of any such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 5.00 to 1.00 and (y) 4.75% of Market Capitalization, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Consolidated Total Net Leverage Ratio shall be less than or equal to 5.00 to 1.00;;
(m) [reserved];
(i) so long as no Default shall have occurred the declaration and be continuing or would result therefrom, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount payment of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized cash dividends by the Borrower and the Restricted Subsidiaries in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(lii) the declaration and payment of dividends or distributions by the Borrower to, or the making of loans to, any direct or indirect parent company of the Borrower in amounts required for any direct or indirect parent company of the Borrower to declare and distributions on pay any cash dividends, in each case of subclauses (i) and (ii), pursuant to the terms of the applicable certificate of designations to holders of any class or series of preferred stock issued in exchange for Equity Interests of any Receivables Management Subsidiary to holders the Asian JV; provided, that the aggregate amount of minority interests substantially consistent with past practice Restricted Payments made under this clause, (A) shall be unlimited if, after giving pro forma effect to the extent payment of such holder Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal to 6.00 to 1.00 and (B) shall not exceed $50.0 million in any calendar year if, after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 6.00 to 1.00;
(o) the distribution, by dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or its affiliatesa Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary owns no assets other than Equity Interests of an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents)); and
(p) participates Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions. For purposes of determining compliance with this Section 7.06, in the Receivables Management Business event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above, the Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06 and will only be required to include the amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations could be classified as incurred under a “ratio-based” basket (including giving pro forma effect to the making of such portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted Payment (and any obligations in respect thereof) as a lender having been made pursuant to such “ratio-based” basket and thereafter the remainder of the Restricted Payment as having been made pursuant to one or financier under more of the other clauses of this Section 7.06 and if any financing provided such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to a Receivables Management Subsidiary)have automatically occurred at such time.
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Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, and to other Restricted Subsidiaries and of the Borrower (ii) each and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c) Restricted Payments made (i) to consummate the Transactions, (ii) in connection with respect of working capital adjustments or purchase price adjustments pursuant to the Transaction Merger Agreement, (including any amounts iii) in order to be paid under, or contemplated by, satisfy indemnity and other similar obligations under the Transaction AgreementMerger Agreement and (iv) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case, with respect to the Transactions;
(d) to the extent constituting Restricted Payments, the Borrower (or any direct or indirect parent thereof) and the its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 (other than Section 7.08(f) or 7.08(l));
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or tax withholdings with respect to, such options options, warrants or warrantsother equity-based awards;
(f) the Borrower and each Restricted Subsidiary may (i) pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries or (ii) make Restricted Payments in the form of distributions to allow Holdings or any direct or indirect parent of Holdings to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) together with the aggregate amount of loans and advances to Holdings or any parent thereof made pursuant to clause (25) of the definition of “Permitted Investments” in lieu of Restricted Payments permitted by this clause (f) shall not exceed $12,000,000 in any calendar year (which shall increase to $18,000,000 subsequent to the consummation of a Qualified IPO) (with 100% of the unused amounts in any calendar year being carried over to succeeding calendar years); provided further that such amount in any calendar year may further be increased by an amount not to exceed:
(A) amounts used to increase the Cumulative Credit pursuant to clauses (b) and (c) of the definition of “Cumulative Credit”;
(B) the Net Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the cash proceeds of such key man life insurance policies; and provided further that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to Holdingsexceed (x) the greater of $24,000,000 and 2.2% of Total Assets as determined at the time of such Restricted Payment (less the amount of any prepayments, redemptions, purchases, defeasances and Holdings other payments in respect of Junior Financings in reliance on the dollar amount set forth in Section 7.13(a)(iv)), plus (y) the Cumulative Credit at such time (provided, that with respect to any Restricted Payment (other than a Restricted Investment) made out of amounts under clause (a)(ii) of the definition of “Cumulative Credit” pursuant to this clause (y), no Event of Default has occurred and is continuing or would result therefrom and the Borrower, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, could incur $1.00 of additional Permitted Ratio Debt); provided that no Restricted Payment may be made pursuant to this clause (g) if an Event of Default has occurred and is continuing or would result therefrom;
(h) the Borrower may make a corresponding Restricted Payment Payments to any direct or indirect parent thereofof the Borrower:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower operating costs and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable business and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries, Transaction Expenses and any reasonable and indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(iiiii) the proceeds of which shall be used by Holdings to pay (or make Restricted Payments to allow any direct or indirect parent thereofthereof to pay) to pay franchise and similar taxes and other fees, taxes fees and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period for which the Borrower is a disregarded entity or a partnership for U.S. federal income tax purposes or for which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent, in an amount equal to the product of (x) taxable income of the Borrower and, to the extent applicable, its Subsidiaries and (y) the highest combined marginal income tax rate applicable to an individual or corporate resident in New York City that holds equity in the Borrower (“Tax Distribution”);
(iv) if a Holdings Election Event shall occur, to finance any Investment Permitted Investments and other Investments that would be permitted to be made pursuant to this Section 7.027.06 and Section 7.08 if made by the Borrower or any of its Restricted Subsidiaries; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted AcquisitionAcquisition or Investment, and in each case, the Borrower shall cause in accordance with the requirements of Section 6.11 6.11;
(v) the proceeds of which (A) shall be used to be complied withpay salary, within the time periods specified therein (commissions, bonus and other benefits payable to and indemnities provided on behalf of officers, employees, directors and members of management of Holdings or any direct or indirect parent company of Holdings and any payroll social security or similar taxes thereof to the extent required such salaries, commissions, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries or (B) shall be used to make payments permitted under Sections 7.08 (e), (i), (k) and (p) (but only to the extent such payments have not been and are not expected to be made by the Collateral and Guarantee RequirementBorrower or a Restricted Subsidiary); and
(vvi) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) (A) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this AgreementHoldings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries and (B) expenses and indemnities of the trustee with respect to any debt offering by Holdings (or any direct or indirect parent thereof);
(gi) payments made or expected to be made by Holdings, the Borrower may pay for or any of the repurchase, retirement Restricted Subsidiaries in respect of withholding or other acquisition payroll and other similar Taxes payable by or retirement for value of Equity Interests of the Borrower by with respect to any future, present or former employee employee, director, manager or director consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or the vesting or settlement of other equity-based awards;
(j) after a Qualified IPO, (i) any Restricted Payment by the Borrower or any 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% of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO;
(k) Holdings, the Borrower or any of its the Restricted Subsidiaries pursuant to may pay cash in lieu of fractional Equity Interests in connection with any employee dividend, split or director equity plan, employee or director stock option plan combination thereof or any other employee or director benefit plan or any agreement Permitted Acquisition; and
(including any stock subscription or shareholder agreementl) with any employee or director of Restricted Payments in an aggregate amount not to exceed the net cash proceeds received by the Borrower or any Restricted Subsidiary from a Person other than Holdings or a Subsidiary thereof from the sale of its Subsidiariesthe Sale Leaseback Properties pursuant to a Sale Leaseback Transaction; provided, however, that the aggregate amount of payments made pursuant to this clause (f) does not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without immediately after giving effect to any such Restricted Payment (A) no Event of Default has occurred and is continuing and (B) the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of Total Net Leverage Ratio on a Qualifying IPO)Pro Forma Basis is not greater than 6.503.70:1.00;
(hm) so long as no Event of Default shall have occurred and be continuing or would result therefrom, additional Restricted Payments (the Borrower proceeds of which may be utilized by Holdings to make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), not to exceed the sum of (A) $75,000,000 (such amount to be increased to $100,000,000 upon the Total Leverage Ratio as of the last day of any Test Period being less than 5.0 to 1.0) and (B) the Cumulative Growth Amount;
(iPayments) so long as no Default shall have occurred and be continuing or would result therefromimmediately after giving effect to such Restricted Payment, the Borrower may make additional Restricted Payments in an amount (together with the aggregate amount Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 5.003.70 to 1.00, and satisfaction of Investments made pursuant to Section 7.02(v)) not to exceed any reduction in taxes realized such test shall be evidenced by a certificate from a Responsible Officer of the Borrower and the Restricted Subsidiaries demonstrating such satisfaction calculated in the form of refunds or deductions realized in connection with the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
(k) if the Borrower shall become the Subsidiary of Holdings, so long as no Default shall have occurred and be continuing or would result therefrom, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefromreasonable detail; and
(ln) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary Special Distribution in an amount not to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary)exceed $110 million.
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Restricted Payments. Declare or make or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligations (contingent or otherwise) to do so, except:
(a) (i) each Restricted Subsidiary may make Restricted Payments (i) to the Borrower and to other Restricted Subsidiaries and (ii) each in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary may make Restricted Payments Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; provided that no Restricted Payment of the type described in preceding clause (ii) shall be made at any time an Event of Default has occurred and is continuing;
(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; provided that to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents, such Equity Interests shall be pledged to the Administrative Agent and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(c) Restricted Payments in connection with the Transaction (including any amounts to be paid under, or contemplated by, the Transaction Agreement) and the fees and expenses related thereto owed to Affiliates, including any payment to holders of Equity Interests of the Borrower (immediately prior to giving effect to the Transactions) in connection with, or as a result of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto;
(d) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other than Section 7.08(fSections 7.08(a) and (c);
(e) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fd) the Borrower and its Restricted Subsidiaries may make Restricted Payments to Holdings, and Holdings may make a corresponding Restricted Payment to any direct or indirect parent thereof:
(i) the proceeds of which will be used to pay the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings (or any direct or indirect parent thereof) attributable to Holdings, the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $3,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any direct or indirect parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;
(iii) the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iv) if a Holdings Election Event shall occur, to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition, and in each case, the Borrower shall cause the requirements of Section 6.11 to be complied with, within the time periods specified therein (to the extent required by the Collateral and Guarantee Requirement); and
(v) if a Holdings Election Event shall occur, the proceeds of which shall be used by Holdings (or any direct or indirect parent thereof) to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement;
(g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower Holdco by any future, present or former employee employee, manager or director of the Borrower or any of its Restricted Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Affiliates) upon the death, disability or termination of employment of such persons or pursuant to any employee employee, manager or director equity plan, employee employee, manager or director stock option plan or any other employee employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee employee, manager or director of the Borrower or any of its SubsidiariesRestricted Subsidiaries (other than the ▇▇▇▇▇▇▇▇ Brothers or any of their Affiliates); provided, however, provided that the aggregate amount of payments Restricted Payments made pursuant to this clause (fd) does after the Closing Date, when combined with the aggregate amount of all cash payments (whether principal or interest) made by the Borrower in respect of any promissory notes pursuant to Section 7.03(h) after the Closing Date, shall not exceed in any fiscal year of the Borrower $15,000,000 (which shall increase to $20,000,000 subsequent to the consummation of a Qualifying IPO, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $30,000,000 in any calendar year (which shall increase to $40,000,000 subsequent to the consummation of a Qualifying IPO)10,000,000;
(he) the Borrower and its Restricted Subsidiaries may make Restricted Payments to the Holding Companies:
(i) the proceeds of which shall be used by a Holding Company to pay franchise taxes and other fees, taxes and expenses required to maintain its limited liability company existence; and
(ii) of up to $2,500,000 per year (in the aggregate with any loans and advances made to the Holding Companies pursuant to Section 7.02(m) in reliance on this clause (e)(ii)), the proceeds of which shall be used by the Holding Companies to pay corporate overhead expenses;
(f) in addition to the foregoing Restricted Payments and so long as (i) no Default shall have occurred and be continuing or would result therefrom, (ii) immediately after giving effect thereto the Borrower may make additional and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, (iii) with respect to Restricted Payments made using the Restricted Payment Base Basket, the Required Incurrence Interest Coverage Ratio shall be greater than 2.00:1.00 (as determined on a Pro Forma Basis after giving effect to such Restricted Payments), and (iv) with respect to Restricted Payments made using the Restricted Payment Builder Basket, the First Lien Leverage Ratio (as determined on a Pro Forma Basis after giving effect to such Restricted Payments) shall be less than or equal to 4.50:1.00, with the compliance under the preceding clauses (ii), (iii) and (iv) determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such Restricted Payments had been made as of the first day of the four-quarter fiscal period covered thereby and evidenced by a certificate from the principal accounting officer of the Borrower demonstrating such compliance in reasonable detail and indicating whether a particular Restricted Payment is being made using the Restricted Payment Base Basket (and, if so, whether it is using the Initial Restricted Payment Base Basket) or the Restricted Payment Builder Basket (it being understood that the Borrower shall be permitted to elect to use either basket or a combination of the two baskets, to the extent available, in respect of any particular Restricted Payment), Restricted Payments in an aggregate amount, together with amount from and after the aggregate amount of (i) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made pursuant to Section 7.13(a)(iv) and (ii) loans and advances made pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by this clause (h), Closing Date not to exceed the sum of (A) $75,000,000 (such an amount to be increased equal to $100,000,000 upon 150,000,000 (the Total Leverage Ratio as of amount described in this clause (A), the last day of any Test Period being less “Initial Restricted Payment Base Basket”), plus (B) an amount equal to the Project Reimbursements received by the Borrower and its Restricted Subsidiaries from Persons other than 5.0 Loan Parties after the Closing Date that is Not Otherwise Applied (the cumulative amount available for Restricted Payments pursuant to 1.0clauses (A) and (B) the Cumulative Growth Amount;
(i) so long as no Default shall have occurred and be continuing or would result therefrom), the Borrower may make additional Restricted Payments in an amount (together with less the aggregate amount of Investments made in reliance on Section 7.02(n)(B), collectively, the “Restricted Payment Base Basket”) plus (C) the aggregate amount of the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 7.02(v8.04) received by the Borrower (provided, that, in the case of any such Permitted Equity Issuances by the Holding Companies, such Net Cash Proceeds shall have been received by the Borrower in the form of a capital contribution from the applicable Holding Company), in each case after the Closing Date that are Not Otherwise Applied and, plus (D) the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied, plus (E) an amount equal to the returns or refunds of Qualifying Investments (excluding any interest, earnings, returns or other gains in respect of such Qualifying Investments determined in the manner set forth in Section 1.03(d)) not to exceed any reduction in taxes realized received by the Borrower and the its Restricted Subsidiaries in from Persons other than Loan Parties after the form of refunds or deductions realized in connection with Closing Date that is Not Otherwise Applied (the Transactions;
(j) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower may make cumulative amount available for Restricted Payments with the proceeds of the issuance of Qualified Equity Interests of the Borrower;
pursuant to clauses (kC) if the Borrower shall become the Subsidiary of Holdingsthrough (E), so long as no Default shall have occurred and be continuing or would result therefromcollectively, dividends and distributions which will be used to fund the payment of interest and fees on Indebtedness of Holdings permitted by Section 7.16; provided, that the Borrower shall have elected to include such amounts in its Consolidated Interest Expense by delivering an irrevocable written notice to the Administrative Agent stating that the Borrower will make such dividends and distributions (the “Restricted Payments Interest Expense Election”) in respect of the Indebtedness specified in such notice only so long as no Default shall have occurred and be continuing or would result therefrom; and
(l) the declaration and payment of dividends and distributions on the Equity Interests of any Receivables Management Subsidiary to holders of minority interests substantially consistent with past practice to the extent such holder (or its affiliates) participates in the Receivables Management Business (including as a lender or financier under any financing provided to a Receivables Management Subsidiary).the
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