Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and (c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following: (a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph; (c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries; (e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options; (f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period; (g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors; (h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time; (i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate; (j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and (k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 3 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Restricted Payments. The Company shall not, and nor shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchasedeclare, redeem order, pay, make or otherwise acquire or retire set apart any sum for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company except for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) (i) Restricted Payments by any Subsidiary of the payment Company to any Loan Party and (ii) Restricted Payments by a non-Wholly-Owned Subsidiary of the Company to its shareholders generally so long as the Company or any dividend within 60 days after Subsidiary which owns the date equity interest or interests in the non-Wholly-Owned Subsidiary paying such dividends receives at least its proportionate share thereof (based on its relative holdings of declaration thereof equity interests in the non-Wholly-Owned Subsidiary paying such dividends and taking into account the relative preferences, if at said date any, of declaration the various classes of equity interests in such payment would have complied with the provisions of this IndentureSubsidiary);
(b) dividends and distributions declared and paid on the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness common Stock of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries and payable only in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary common Stock of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) cash dividends on the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness Stock of the Company to Holdings paid and declared in any Fiscal Year solely for the purpose of funding the following:
(i) ordinary operating expenses of Holdings not in excess of $4,000,000 in the aggregate in any Fiscal Year;
(ii) reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Company and its Subsidiaries;
(iii) payments by Holdings in respect of foreign, federal, state or local taxes owing by Holdings in respect of the Company and its Subsidiaries, but not greater than the amount that would be payable by the Company and its Subsidiaries, on a consolidated, combined or unitary basis;
(iv) the Restricted Payments permitted to be made by Holdings under clause (g) below;
(v) fees and expenses (other than to Affiliates) related to any Guarantor unsuccessful equity or debt offering permitted by this Agreement; and
(vi) management fees permitted to be paid under Section 8.8(d) (Transactions with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing IndebtednessAffiliates);
(d) the payment of any dividend or distribution Restricted Payments by a Restricted Subsidiary of the Company to pay (or make Restricted Payments to allow the Company or any of its Restricted Subsidiaries;
(eHoldings to pay) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests common Stock of the Company or any Restricted Subsidiary of the Company Holdings held by any member future, present or former employee, director or consultant of the Company’s (, Holdings or any of its Restricted Subsidiaries’) management their Subsidiaries pursuant to any management equity subscription agreement plan or stock option agreement plan or any other management or employee benefit plan or agreement, or may make Restricted Payments in effect as respect of the Issue DateSARs; provided provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall amount of Restricted Payments made under this clause (d) does not exceed €1,000,000 in any twelve-month periodcalendar year $10,000,000 (with unused amounts in any calendar year being permitted to be carried over to the two succeeding calendar years); provided, further, that such agreement amount in any calendar year may be increased by an amount not to exceed (i) the Net Cash Proceeds from the sale of Stock (other than Disqualified Stock) to members of management, directors or such repurchaseconsultants of Holdings or its Subsidiaries that occurs after the Closing Date plus (ii) the amount of any cash bonuses otherwise payable to members of management, redemption directors or other acquisition consultants of Holdings or retirement or any of its Subsidiaries in connection with the agreement Transactions that are approved by a majority foregone in return for the receipt of Stock of the disinterested members Company or Holdings pursuant to a deferred compensation plan plus (iii) the cash proceeds of key man life insurance policies received by Holdings, the Company or its Subsidiaries after the Closing Date (provided, that Holdings may elect to apply all or any portion of the Board aggregate increase contemplated by clauses (i), (ii) and (iii) above in any calendar year) less (iv) the amount of Directorsany Restricted Payments previously made pursuant to clauses (i), (ii) and (iii) above;
(e) Restricted Payments of up to (i) in the event the Net Senior Secured Leverage Ratio is equal to or less than 1.5 to 1.0, but greater than 1.0 to 1.0, 25%, (ii) in the event the Net Senior Secured Leverage Ratio is equal to or less than 1.0 to 1.0, but greater than 0.75 to 1.0, 50% and (iii) in the event the Net Senior Secured Leverage Ratio is equal to or less than 0.75 to 1.0, 75% of the aggregate amount of Net Cash Proceeds received during the Fiscal Year immediately preceding such Restricted Payment, from all Asset Sales consummated during such Fiscal Year under Section 8.4(g) (Sale of Assets) to the extent such Net Cash Proceeds are not required to prepay the Loans under Section 2.9(a)(i)(A) (Mandatory Prepayments);
(f) (i) the repurchase of Stock or Subordinated Debt, if such repurchase is completed through the issuance of Stock or new Permitted Subordinated Indebtedness, (ii) regularly scheduled or otherwise required repayments or redemptions of Subordinated Debt and (iii) renewals, extensions, refinancings and refundings of Subordinated Debt, as long as such renewal, extension, refinancing or refunding is permitted under Section 8.1 (Indebtedness);
(g) the repurchase of company granted stock awards or options necessary to satisfy obligations attributable to tax withholding; and
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregateotherwise permitted under this Section 8.5; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationprovided, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationhowever, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If that the aggregate amount of all such Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraphPayments, then together with the aggregate amount of all Investments made under Section 8.3(k), shall not exceed (i) $150,000,000 plus (ii) the Available Amount; provided, however, that the Restricted Payments described in clauses (c) through (h) above shall not be permitted if either (A) an Event of Default or Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom or (B) such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with Payment is prohibited under the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments any Indebtedness (other than cashthe Obligations) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value any of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeits Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Marquee Holdings Inc.), Credit Agreement (Amc Entertainment Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Interests) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company (other than any such Equity Interests owned by the Company or any Wholly-Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofof this Indenture; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv), (vi), (vii) and (gviii) of the next second succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture (the "MEASUREMENT DATE") to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Measurement Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockInterests) or from the issuance issue or sale of Disqualified Stock Interests or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock Interests or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (DB) if any Unrestricted Subsidiary is redesignated the aggregate amount of such Restricted Investment that was treated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing StepsPayment when made. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” . The Board foregoing provisions shall not prohibit (i) the payment of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary dividend within 60 days after the date of declaration thereof, if at said date of declaration such redesignation complies payment would have complied with the requirements described provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the definition net cash proceeds of “Unrestricted Subsidiary.” If the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Interests); PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries') management; PROVIDED that the aggregate amount price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in any twelve-month period and no Default or Event of all Restricted Payments calculated for purposes Default shall have occurred and be continuing immediately after such transaction; (vi) the declaration of the first paragraph of this Section 4.07 includes an Investment in ▇▇▇▇ ▇▇▇▇▇ Vehicle as an Unrestricted Subsidiary on the date that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and of the Company; PROVIDED that it otherwise meets the qualifications of an Unrestricted Subsidiary; (bvii) distributions to partners or owners of the Company in an aggregate amount during or with respect to any fiscal period commencing after December 31, 1996, not to exceed the Tax Amount for such period or for such prior periods commencing after December 31, 1996 that are subject to adjustments as a result of audits by tax authorities; (viii) transfers of cash proceeds from the sale of the Notes not to exceed, in the aggregate, $85.0 million, to finance the purchase of the Company's limited partnership interests from the public holders of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (units, as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in the Offering Memorandum under the caption "Use of Proceeds" and (ix) additional Restricted Payments not to exceed $5.0 million after the date of this Indenture (in the case of a designation) and with this Section 4.07Indenture. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination Directors whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $1.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Restaurant Co), Indenture (Perkins Finance Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to(a) Declare or make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), Payment unless, at the time of and immediately after giving effect to such Restricted Payment:
, such Restricted Payment, together with the aggregate amount of all other Restricted Payments (aincluding the fair market value of any non-cash amount) made by the Borrower and the Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by Sections 7.06(b)(i), (ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (c) thereof), (vi)(C) and (ix), but excluding all other Restricted Payments permitted by Section 7.06(b) (and for the avoidance of doubt, all other Permitted Investments)), is less than the Available Amount at such time; provided to the extent such Restricted Payment is to be made out of amounts under clause (b) of the definition of “Available Amount,” (x) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
thereof and (by) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant Permitted Ratio Debt would be permitted to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andbe incurred.
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through The provisions of Section 7.06
(ea) andwill not prohibit:
(i) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 7.06;
(a) the redemption, repurchase, retirement or other acquisition of any Equity Interest, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”), or Subordinated Indebtedness, of any Loan Party or any Equity Interest of any Parent Entity of the Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests of the Borrower or any Parent Entity thereof to the extent deducted contributed to the Borrower (in computing Consolidated Net Incomeeach case, other than any Disqualified Stock) (“Refunding Capital Stock”), (fb) the declaration and (g) payment of dividends on Treasury Capital Stock out of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account proceeds of the Company’s substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Borrower or to an employee stock ownership plan or any trust established by the Borrower or any of its Restricted Subsidiaries’ Equity Interests ) of Refunding Capital Stock, and (including, without limitation, any such payment in connection with any merger or consolidation involving the Companyc) or if immediately prior to the direct or indirect holders retirement of Treasury Capital Stock, the Company’s Equity Interests in their capacity as such declaration and payment of dividends thereon was permitted under clause (vi) of this Section 7.06(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity of the Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(iiii) dividends the defeasance, redemption, repurchase, exchange or distributions payable other acquisition or retirement of (1) Junior Financing of the Borrower or a Subsidiary Guarantor made by exchange for, or out of the proceeds of a sale made within 90 days of, new Indebtedness of the Borrower or a Subsidiary Guarantor or (2) Disqualified Stock made by exchange for, or out of the proceeds of a sale made within 90 days of, Disqualified Stock of the Borrower or a Subsidiary Guarantor that, in each case, is incurred in compliance with Section 7.03;
(iv) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the CompanyBorrower or any Parent Entity thereof held by any future, present or former employee, director, officer, manager or consultant (iior their respective Controlled Investment Affiliates or Immediate Family Members) dividends or distributions payable to of the Company Borrower, any of its Subsidiaries or any of its Restricted Subsidiaries Parent Entities pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or equity holder agreement (iii) if including, for the Restricted Subsidiary making avoidance of doubt, any principal and interest payable on any notes issued by the Borrower or any Parent Entity thereof in connection with such dividend is not a Wholly Owned Restricted Subsidiaryrepurchase, dividends to its shareholders on a pro rata basisretirement or other acquisition), is less than the sum (without duplication) including any Equity Interest rolled over by management of the following: Borrower or any Parent Entity thereof in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this Section 7.06(b)(iv) does not exceed $10,000,000 in any fiscal year (which amount shall be increased to $20,000,000 following the consummation of a Qualifying IPO) (with unused amounts in any fiscal year being carried over to the succeeding fiscal years); provided, further, that each of the amounts in any fiscal year under this clause may be increased by an amount not to exceed:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) cash proceeds from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the issuance or sale of Disqualified Stock or debt securities Equity Interests of any Parent Entity of the Company that have been converted intoBorrower, in each case to any future, present or former employees, directors, officers, managers, or exchanged consultants (or redeemed fortheir respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its Parent Entities that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary are excluded from the calculation of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoAvailable Amount; plus
(B) the cash proceeds of life insurance policies received by the Borrower, or exchanged or redeemed forthe Restricted Subsidiaries or, Disqualified Stock), plus (C) to the extent that such proceeds are contributed to a Loan Party, any Restricted Investment that was made Parent Entity of the Borrower, in each case, after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment Closing Date; less
(less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2C) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied Restricted Payments previously made with the provisions cash proceeds described in clauses (A) and (B) of this Indenture;
clause (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockiv); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement cancellation of Indebtedness owing to the Borrower or such repurchaseany Restricted Subsidiary from any future, redemption present or other acquisition former employees, directors, officers, managers, or retirement consultants (or the agreement are approved by a majority their respective Controlled Investment Affiliates or Immediate Family Members) of the disinterested members Borrower, any Parent Entity of the Board Borrower or any Restricted Subsidiary in connection with a repurchase of DirectorsEquity Interests of the Borrower or any Parent Entities thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;
(hv) loans the declaration and payment of dividends or advances distributions to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary issued in the ordinary course accordance with Section 7.03 or any class or series of business to Affiliates or Persons with which the Company or a Preferred Stock of any Restricted Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans dividends or advances distributions are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described included in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of Fixed Charges”;
(avi) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (bA) the amount declaration and payment of such Investments. Any designation dividends or redesignation of a Subsidiary shall be evidenced distributions to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation holders of any Investment relating thereto (as determined in good faith by the Board class or series of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments Designated Preferred Stock (other than cashDisqualified Stock) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as Borrower after the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.Closing Date;
Appears in 2 contracts
Sources: Credit Agreement (ATD Corp), Credit Agreement (American Tire Distributors Holdings, Inc.)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Subordinated Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 4.09(a) hereof; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (6), (7), (8), (9) and (g10) of the next succeeding paragraph), and paragraph (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stockb) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisthis Section 4.07), is less than the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date April 1, 2007 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since (including the Fair Market Value of any Additional Assets to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) after the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (ii) the initial amount of such Restricted Investment, plus
(D) if to the extent that any Unrestricted Subsidiary of the Company designated as such after the Issue Date is redesignated as a Restricted SubsidiarySubsidiary after the Issue Date, the lesser of (1i) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Restricted Subsidiaries Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary.
(b) So long as no Default or Event of Default has occurred and (2) is continuing or would be caused thereby, the amount of such Investments. The foregoing preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such payment declaration, the dividend would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from clause (c)(B3)(B) of the preceding paragraph;
(c3) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;; and
(d4) the payment of any dividend or distribution by a wholly-owned Restricted Subsidiary of the Company to the Company or any of its a Restricted SubsidiariesSubsidiary;
(e5) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member current or former director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management director or employee equity subscription agreement or plan, stock option agreement in effect as of the Issue Dateor similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $2.0 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h6) loans or advances in the ordinary course acquisition of business to Affiliates or Persons with which Equity Interests by the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of the Company stock options or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one timestock appreciation rights by way of cashless exercise;
(i7) so long as no Default has occurred and is continuing, advances constituting Investment upon the occurrence of a Change of Control or loans to directors, officers an Asset Sale and employees within 60 days after the completion of the Company offer to repurchase the Notes pursuant to Section 4.15 or Section 4.10 (including the purchase of all Notes tendered), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness required under the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and its Restricted Subsidiaries unpaid interest thereon, if any, provided that, in the ordinary course notice to Holders relating to a Change of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in Control or Asset Sale hereunder, the aggregateCompany shall describe this clause (7);
(j8) the payment of cash in lieu of fractional shares of Capital Stock in connection with any transaction otherwise permitted under this Indenture;
(9) Permitted Payments to Parent Companies; and
(10) other Restricted Payments in an aggregate amount since the Issue Date not to exceed $15,000,000 in the aggregate; and20.0 million.
(kc) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such Company, whose determination shall be evidenced by a resolution of the Board of Directors of the Company. Such Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds $20.0 million. Not later than the date of making any Restricted Payment under the first paragraph of this covenant the Company will deliver to the Trustee an Officers’ Certificate delivered stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (10), the Company will be permitted to the Trusteeclassify (or later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment in any manner that complies with this covenant.
Appears in 2 contracts
Sources: Indenture (Energy Xxi (Bermuda) LTD), Indenture (Energy Xxi (Bermuda) LTD)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date July 21, 1997 (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income), (fc), (d) and (gf), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date July 1, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since July 21, 1997 of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date July 21, 1997 is or was sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment, plus (D) if in the event that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Company's Investments previously made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.plus (E) $5.0
Appears in 2 contracts
Sources: Indenture (Saevik Shipping As), Indenture (Trico Marine Services Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Series A/B Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income), (fc), (d) and (gf), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date July 1, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the Series A/B Issue Date of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Series A/B Issue Date is or was sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment, plus (D) if in the event that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Company's Investments previously made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.plus (E) $5.0
Appears in 2 contracts
Sources: Indenture (Trico Marine Services Inc), Indenture (Trico Marine Services Inc)
Restricted Payments. The From and after the date hereof the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any such dividend, distribution or other payment made as a payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries), other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, any such purchase, redemption or other acquisition or retirement for value made as a payment in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries Subsidiary (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or a payment of principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and immediately after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;continuing; and
(b) the Company would, at the time of such Restricted Payment Payment, and after giving pro forma effect thereto as if any Indebtedness in order to make such Restricted Payment had been made incurred at the beginning of the applicable four-four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv), (vi), (vii), (viii) and (gx) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date hereof to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case Qualified Proceeds received by the Company since from contributions to the Issue Date as a contribution to its common equity Company's capital or from the issue or sale subsequent to the date hereof of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.debt
Appears in 2 contracts
Sources: Indenture (Diamond Brands Inc), Indenture (Diamond Brands Operating Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) or to any direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions (a) payable in Equity Interests (other than Disqualified Stock) of the Company or (b) to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company or Permitted Investments); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness of the Company or any Restricted Subsidiary that is subordinated in right of payment to the Notes or any guarantee of the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:collectively
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof; , and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii) and (giv) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication, of (i) of an amount equal to the following: (A) 50% of the cumulative Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended full fiscal quarter for which internal financial statements are available at have been filed with the time SEC (the "Basket Period") less the product of such Restricted Payment (or, if such 1.4 times the Consolidated Net Income Interest Expense of the Company for such period is a deficit, less 100% of such deficitthe Basket Period), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Cii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said the date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests of Company or subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; and, provided further, that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases holders of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock optionspro rata basis;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Indenture (Spanish Broadcasting System Inc), Indenture (Spanish Broadcasting System of Puerto Rico Inc /Pr/)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Note Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity of the Indebtedness; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f2) and (g3) of the next succeeding paragraph), and paragraph (yb) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisbelow), is less than the sum (sum, without duplication) of the followingduplication of: 44
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus PLUS
(B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus PLUS
(C) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (ii) the initial amount of such Restricted Investment, PLUS
(D) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made such redesignated Subsidiary (as determined in good faith by the Company and its Restricted Subsidiaries in such Subsidiary Board of Directors of the Company) as of the date of its redesignation or (ii) pays any cash dividends or cash contributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of this Indenture.
(b) So long as no Default has occurred and (2is continuing or would be caused thereby, the provisions of Section 4.07(a) the amount of such Investments. The foregoing provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c3) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a PRO RATA basis;
(e5) repurchases of Equity Interests deemed Investments in any Person (other than the Company or a Wholly Owned Restricted Subsidiary) engaged in a Permitted Business in an amount taken together with all other 45 Investments made pursuant to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock optionsthis clause 5 that are at that time outstanding not to exceed $5.0 million;
(f6) so long as no Default has occurred and is continuingother Investments in Unrestricted Subsidiaries having an aggregate fair market value, the repurchase or taken together with all other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) Investments made pursuant to directorsthis clause 6 that are at that time outstanding, officers and employees of the Company and its Restricted Subsidiaries not in excess of to exceed $2,500,000 in any twelve-month period2.0 million;
(g7) so long the designation of certain of the Company's Subsidiaries as no Default has occurred and is continuing, Unrestricted Subsidiaries immediately prior to the date of this Indenture;
(8) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of AP Holdings, Inc. or the Company or any Restricted Subsidiary of the Company held by any member of AP Holdings, Inc, or the Company’s 's (or any of its their Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or stock option agreement or in effect as connection with the termination of employment of any employees or management of AP Holdings, Inc. or the Issue DateCompany or their Subsidiaries; provided PROVIDED, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $2.0 million in any twelve-month period; providedthe aggregate plus the aggregate cash proceeds received by AP Holdings, further, that such agreement or such repurchase, redemption or other acquisition or retirement Inc. or the agreement are approved Company after the date of this Indenture from any reissuance of Equity Interests by a majority of AP Holdings, Inc. or the disinterested Company to members of management of AP Holdings, Inc. or the Board of Directors;Company and their Restricted Subsidiaries; and
(h9) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at 5.0 million. Notwithstanding anything to the contrary, the redemption, repurchase or purchase of any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of equity interest in the Company and or any of its Restricted Subsidiaries pursuant to a put right, right of redemption or right of repurchase will, in any such case, for the ordinary course purposes of business for bona fide business purposes this Section 4.07, be treated as a payment or distribution on account of an Equity Interest and will not in excess be treated as a payment on indebtedness, no matter what the accounting treatment of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Stepssaid transaction may be. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such that designation would not cause a Default (except at Default; PROVIDED, that in no event will the business currently operated by any time during which Guarantor be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Company maintains Investment Grade Status). For purposes aggregate fair market value of making such designation, all outstanding Investments owned by the The Company and its Restricted Subsidiaries in the Subsidiary so properly designated shall will be deemed to be Restricted Payments at an Investment made as of the time of such designationthe designation and will reduce the amount available for Restricted Payments under Section 4.07(a) or Permitted Investments, in an amount equal to as determined by the fair market value of such Investments at the time of such designationCompany. Such That designation shall will only be permitted if such Restricted Payments the Investment would be permitted at such that time and if such the Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” . The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such the redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes would not cause a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07Default. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall will be determined in the manner contemplated good faith by the definition Board of Directors of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the TrusteeTrustee in an Officers' Certificate signed by the Secretary of the Company. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company will deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Ap Holdings Inc), Indenture (Apcoa Standard Parking Inc /De/)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Subordinated Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 4.09(a) hereof; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date December 17, 2010 (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (6), (7), (8), (9), (10) and (g12) of the next succeeding paragraph), and paragraph (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stockb) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisthis Section 4.07), is less than the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date October 1, 2010 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since (and the Issue Date Fair Market Value of any Additional Assets to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) after December 17, 2010 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus plus
(C) to the extent that any Restricted Investment that was made after the Issue Date December 17, 2010 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (ii) the initial amount of such Restricted Investment, plus
(D) if to the extent that any Unrestricted Subsidiary of the Company designated as such after December 17, 2010 is redesignated as a Restricted SubsidiarySubsidiary after December 17, 2010, the lesser of (1i) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Restricted Subsidiaries Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary.
(b) So long as no Default or Event of Default has occurred and (2) is continuing or would be caused thereby, the amount of such Investments. The foregoing preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such payment declaration, the dividend would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from clause (c)(B3)(B) of the preceding paragraph;
(c3) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an a substantially concurrent incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a wholly-owned Restricted Subsidiary of the Company to the Company or any of its a Restricted SubsidiariesSubsidiary;
(e5) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member current or former director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management director or employee equity subscription agreement or plan, stock option agreement in effect as of the Issue Dateor similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $4.0 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h6) loans or advances in the ordinary course acquisition of business to Affiliates or Persons with which Equity Interests by the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of the Company stock options or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one timestock appreciation rights by way of cashless exercise;
(i7) so long as no Default has occurred and is continuing, advances constituting Investment upon the occurrence of a Change of Control or loans to directors, officers an Asset Sale and employees within 60 days after the completion of the Company offer to repurchase the Notes pursuant to Section 4.15 or Section 4.10 (including the purchase of all Notes tendered), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness required under the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and its Restricted Subsidiaries unpaid interest thereon, if any, provided that, in the ordinary course notice to Holders relating to a Change of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in Control or Asset Sale hereunder, the aggregateCompany shall describe this clause (7);
(j8) the payment of cash in lieu of fractional shares of Capital Stock in connection with any transaction otherwise permitted under this Indenture;
(9) Permitted Payments to Parent Companies;
(10) other Restricted Payments in an aggregate amount since the Issue Date not to exceed $15,000,000 in 70.0 million;
(11) the aggregatepayment of dividends on the Company’s common equity (or the payment of dividends or distributions to a direct or indirect parent company of the Company to fund the payment by such parent company of dividends or distributions on its common equity) of up to 6.0% per calendar year of the net proceeds received by the Company from any public Equity Offering or contributed to the Company by a direct or indirect parent company of the Company from any public Equity Offering; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a); and
(k12) Investments in connection with the Permitted Closing Steps. The Board declaration and payment of Directors may designate dividends to holders of any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which class or series of preferred stock or Disqualified Stock of the Company maintains Investment Grade Status). For purposes or any of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries issued in accordance with Section 4.09 to the extent such dividends are included in the Subsidiary so designated shall be deemed to be Restricted Payments at the time calculation of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted SubsidiaryFixed Charges.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of
(ac) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such Company, whose determination shall be evidenced by a resolution of the Board of Directors of the Company. Such Board of Directors’ determination must be based upon an Officers’ Certificate delivered opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds $20.0 million. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (12), the Company will be permitted to the Trusteeclassify (or later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment in any manner that complies with this covenant.
Appears in 2 contracts
Sources: Indenture (Energy Xxi (Bermuda) LTD), Indenture (Energy Xxi (Bermuda) LTD)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof3.3(a) above; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (6), (7) and (g9) of the next succeeding paragraph), and (ySection 3.4(b) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisbelow), is less than the sum (sum, without duplication) of the following: , of:
(Aa) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of first the fiscal quarter following the Issue Date commencing October 1, 2004 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(Bb) 100% of the aggregate of Net Cash Proceeds received by the Company (1) the net cash proceeds and (2) including the fair market value of Strategic any Additional Assets transferred or conveyed to the extent acquired in consideration of Equity Interests of the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”other than Disqualified Stock), in each case received by the Company ) since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or (other than Net Cash Proceeds received from the an issuance or sale of Disqualified such Capital Stock or debt securities to a Subsidiary of the Company that or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan, option plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been converted into, repaid with cash on or exchanged prior to the date of determination); plus
(c) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or redeemed for, such Equity Interests exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or other property, distributed by the Company upon such Equity Interestsconversion or exchange); plus
(d) the amount equal to the net reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from:
(i) repurchases or redemptions of such Restricted Investments by such Person, Disqualified Stock or convertible debt securities sold proceeds realized upon the sale of such Restricted Investment to a purchaser other than the Company or a Subsidiary, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoCompany; or
(ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, or exchanged or redeemed for, Disqualified Stock), plus (C) to in the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return case of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser amount of (1) an amount equal to the fair market value of the Investments previously made by the Company and its or any Restricted Subsidiaries Subsidiary in such Subsidiary as Unrestricted Subsidiary, which amount in each case under this clause (d) was included in the calculation of the date of redesignation and (2) the amount of such Investments. The foregoing Restricted Payments; provided, however, that no amount will be included under this clause (d) to the extent it is already included in Consolidated Net Income.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Subordinate Obligations of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that (a) such purchase or redemption will be excluded in subsequent calculations of the amount of Restricted Payments and (b) the Net Cash Proceeds from such sale will be excluded from clause (3)(b) of Section 3.4(a);
(3) any defeasance, retirement, purchase, redemption or other acquisition of Subordinated Obligations of the Company or any Guarantor, as the case may be, made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests Subordinated Obligations of the Company (other than or any Disqualified Stock); Subsidiary Guarantor, as the case may be, that qualify as Permitted Refinancing Indebtedness, provided that the amount of any obligors on such net cash proceeds new Subordinated Obligations shall not include obligors that are utilized for any were not obligors on the Subordinated Obligations being defeased, retired, repurchased, redeemed or acquired; provided, however, that such redemptiondefeasance, retirement, purchase, retirementredemption or acquisition will be excluded in subsequent calculations of the amount of Restricted Payments;
(4) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition shall be excluded from clause (c)(B) or retirement of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness Subordinated Obligations of the Company or any Guarantor Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest therein; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer with respect to the net cash proceeds from an incurrence ofNotes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, or however, that such repurchase and other acquisitions shall be included in exchange for, Permitted Refinancing Indebtednessthe calculation of the amount of Restricted Payments;
(d5) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to the covenant described under Section 3.7 hereof, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that (A) prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes pursuant to the provisions of the covenant described under Section 3.7 hereof; provided further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted Payments);
(6) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a pro rata basis;
(e7) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member current or former director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management director or employee equity subscription agreement or plan, stock option agreement in effect as of the Issue Dateor similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €$1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority payments will be excluded from any subsequent calculation of the disinterested members amounts of Restricted Payments; provided further that such amount in any twelve-month period may be increased in an amount not to exceed (a) the Board cash proceeds from the issue or sale of DirectorsEquity Interests (other than Disqualified Stock) to any such officers, directors, employees or consultants that occurs after the Issue Date to the extent proceeds from the issue or sale of such Equity Interests have not otherwise been applied to make Restricted Payments plus (b) the cash proceeds of key man life insurance received by the Company or its Restricted Subsidiaries after the Issue Date;
(h) loans or advances in 8) the ordinary course acquisition of business to Affiliates or Persons with which Equity Interests by the Company in connection with the exercise of stock options or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be stock appreciation rights by way of cashless exercise;
(9) payments made in connection with conducting the business consummation of the Company or a Subsidiary Transactions on substantially the terms described in such jurisdiction and the Offering Memorandum;
(10) the payment of cash in a form that is customary to address foreign investment regulation or practice lieu of fractional shares of Capital Stock in such jurisdiction, connection with any transaction otherwise permitted under this covenant; and
(11) other Restricted Payments in an aggregate amount since the date of this Indenture not to exceed $7,500,000 outstanding at any one time;10,000,000.
(ic) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such Directors, whose determination shall be evidenced by a Board Resolution. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10,000,000. Not later than the date of making any Restricted Payment (excluding any Restricted Payment described in the preceding clause (2), (3), (4), (5), (7), (8) or (11) of Section 3.4(b) above) the Company will deliver to the Trustee an Officers’ ' Certificate delivered to stating that such Restricted Payment is permitted and setting forth the Trusteebasis upon which the calculations required by this "Restricted Payments" covenant were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Restricted Payments. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any distribution on account of Holdings' or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Holdings) (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Holdings or dividends or distributions payable to Holdings or any Wholly Owned Subsidiary of Holdings); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company Holdings or any direct or indirect parent of its Holdings or other Affiliate or Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Subsidiary of its Restricted Subsidiaries)Holdings; (iiiii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beExchange Debentures, except a payment in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of interest or principal at Stated Maturityany event); or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company Holdings would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.10; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) date of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis)this Indenture, is less than the sum (of, without duplication) of the following: , (Ai) 50% of the cumulative Consolidated Net Income of the Company Holdings for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s Holdings' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) to the extent not included in the amount described in clause (i) above, 100% of the aggregate of (1) the net cash proceeds and (2) received after the fair market value date of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated this Indenture by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or Holdings from the issue or sale of of, or from additional capital contributions in respect of, Equity Interests of the Company (other than Disqualified Stock) Holdings or from the issuance or sale of Disqualified Stock or debt securities of the Company Holdings that have been converted into, or exchanged or redeemed cancelled in exchange for, such Equity Interests of Holdings (other than Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary or an Unrestricted Subsidiary of the Company Holdings and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified StockStock and less the amount of any loans made pursuant to clause (vi) of the next succeeding paragraph), plus (Ciii) 100% of any cash dividends received by Holdings or a Wholly Owned Subsidiary after the date of the Indenture from an Unrestricted Subsidiary of Holdings, plus (iv) 100% of the cash proceeds realized upon the sale of any Unrestricted Subsidiary (less the amount of any reserve established for purchase price adjustments and less the maximum amount of any indemnification or similar contingent obligation for the benefit of the purchaser, any of its Affiliates or any other third party in such sale, in each case as adjusted for any permanent reduction in any such amount on or after the date of such sale, other than by virtue of a payment made to such Person) following the date of this Indenture, plus (v) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold to an unaffiliated purchaser for cash or otherwise liquidated or repaid for cash, the cash return of capital proceeds realized with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments). The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Investment in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Holdings (other than Disqualified Stock); (iii) the Companyredemption, repurchase, retirement or other acquisition of any Equity Interests of Holdings in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, other Equity Interests of the Company Holdings (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(civ) the defeasance, redemption, purchase, retirement redemption or other acquisition repurchase of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from (X) an incurrence of Permitted Refinancing Indebtedness or (Y) the substantially concurrent sale (other than to a Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in exchange forrespect of, Permitted Refinancing Indebtedness;
Equity Interests of Holdings (dother than Disqualified Stock); (v) the declaration or payment of any dividend to Holdings for, or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the direct repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Holdings or any Restricted Subsidiary of the Company Holdings held by any member of the Company’s Holdings' (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor plan or stockholders agreement; provided that (X) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $2.0 million in any twelve-month periodfiscal year (plus any amount available for such payments hereunder since the date of this Indenture which have not been used for such purpose) or (Y) $8.0 million in the aggregate (in each case, net of the cash proceeds received by Holdings from subsequent reissuances of such Equity Interests to new members of management); provided(vi) loans to members of management of Holdings or any Restricted Subsidiary the proceeds of which are used for a concurrent purchase of Equity Interests of Holdings and a capital contribution in an amount equal to such proceeds to Holdings; (vii) payments in connection with the application of the net proceeds of the Recapitalization as set forth under "Use of Proceeds" in the Offering Memorandum; (viii) payments to Holdings in respect of accounting, further, that such agreement or such repurchase, redemption legal or other acquisition or retirement or administrative expenses incurred by Holdings relating to the agreement are approved by a majority operations of the disinterested members of the Board of Directors;
(h) loans or advances Holdings in the ordinary course of business to Affiliates or Persons and in respect of fees and related expenses associated with which registration statements filed with the Company or a Subsidiary may have contractual arrangements Commission and subsequent ongoing public reporting requirements arising from the issuance of the Holdings' guarantee of the Senior Notes, the Senior Preferred Stock and the Exchange Debentures; provided that the aggregate amount of such payments does not exceed $500,000 in any jurisdiction fiscal year; (ix) so long as Holdings files consolidated income tax returns which include Anvil, payments to Holdings in an amount equal to the extent such loans or advances are reasonably necessary to be made in connection with conducting amount of income tax that Anvil would have paid if it had filed consolidated tax returns on a separate-company basis; (x) payments of director's fees and the business reasonable expenses of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, its directors in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
125,000 per year (iincluding indemnification obligations and professional fees and expenses) so long as no Default has occurred by Holdings and is continuing, advances constituting Investment or loans payments to directors, officers and employees of the Company and its Restricted Subsidiaries Holdings in the ordinary course of business for bona fide business purposes not respect thereof; (xi) payments to Holdings in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments an amount not to exceed $15,000,000 200,000 in aggregate to enable Holdings to make payments to holders of its Capital Stock in lieu of issuing fractional shares thereof; (xii) any payments on the aggregate; and
(k) Investments Senior Preferred Stock in connection with the Permitted Closing Stepsexchange thereof into Exchange Debentures; (xiii) the acquisition and issuance of Senior Preferred Stock by Holdings in connection with the exchange offer contemplated by the Registration Rights Agreement; (xiv) the making of any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Exchange Debentures out of Excess Proceeds available for general corporate purposes after consummation of purchases of Exchange Debentures pursuant to an Asset Sale Offer; (xv) the declaration and payment of any dividend or the making of any other distribution for the purpose of funding any payment in respect of or repurchase or redemption of the Senior Preferred Stock or the Exchange Debentures; and (xvi) the repurchase of the Senior Preferred Stock or the Exchange Debentures in connection with an offer required to be made therefor in connection with a Change of Control provided that Anvil has previously paid all amounts required to be paid in connection with any Change of Control Offer for the Senior Notes; provided however that in the case of any transaction described in clauses (i), (ii), (iii), (iv) and (v) no Default or Event of Default will have occurred and be continuing immediately after such transaction. In determining the aggregate amount of Restricted Payments made after the date of hereof, 100% of the amounts expended pursuant to the foregoing clauses (ii), (iii), (iv)(Y), (v) and (vi) shall be included in such calculation and none of the amounts expended pursuant to the foregoing clauses (i), (iv)(X), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv) and (xvi) shall be included in such calculation. As of the date of this Indenture, all of Holdings' Subsidiaries were Restricted Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company Holdings and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an designation and shall reduce the amount equal to available for Restricted Payments under the fair market value first paragraph of such Investments at the time of such designationthis covenant. Such designation shall only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the greater of (i) book value and (ii) fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company Holdings or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Not later than the date of making any non-cash Restricted Payment, Holdings shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment shall is permitted and setting forth the basis upon which the calculation required by this covenant were computed, which calculations may be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteebased upon Holdings' latest available financial statements.
Appears in 2 contracts
Sources: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries') or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Qualified Capital Stock of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be(other than intercompany Indebtedness), except a payment of interest or principal at Stated Maturitystated maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourFour-quarter periodQuarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b3), (4) through (e) and, but only to the extent deducted in computing Consolidated Net Incomesuch Restricted Payment is made with the cash proceeds received by the Company from any "key man" life insurance policies), (f) 5), (7), (8) and (g9) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of net proceeds (1) the net cash proceeds and (2) including the fair market value of Strategic Assets transferred or conveyed to the Company property other than cash (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated good faith by the definition Management Committee as evidenced by a certificate filed with the Trustee, except that in the event the value of any non cash consideration shall be $15.0 million or more, the term “fair market value”value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing), in each case ) received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) of the Company (excluding any net proceeds from an Equity Offering or capital contribution to the extent used to redeem Notes in accordance with the optional redemption provisions of the Notes) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) ), plus (Div) if any dividends (the fair market value of property other than cash shall be determined in good faith by the Management Committee as evidenced by a certificate filed with the trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing) received by the Company or a Restricted Subsidiary after the date of this Indenture from any Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (1A) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries Company's Investment in such Subsidiary as of the date of such redesignation and or (2B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the amount Fixed Charge Coverage Ratio of the Company on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of the Company's Investment in such Subsidiary as of the date of such Investmentsredesignation. The foregoing Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph will not prohibit any of the following:
(a1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof of such dividend or notice of such redemption if at said the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration such payment would or notice; (2) if no Event of Default shall have complied with occurred and be continuing or shall occur as a consequence thereof, the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Capital Stock of the Company or any Guarantor or any Equity Interests (the "Retired Capital Stock"), either (i) solely in exchange for Qualified Capital Stock of the Company or any of its Restricted Subsidiaries in exchange for(the "Refunding Capital Stock"), or out (ii) through the application of the net cash proceeds of the a substantially concurrent sale for cash (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of Qualified Capital Stock of the Company Company, and, in the case of subclause (i) of this clause (2), if immediately prior to the retirement of the Retired Capital Stock the declaration and payment of dividends thereon was permitted under clause (3) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement; provided that at the time of the declaration of any such dividends on the Refunding Capital Stock, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (3) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than any Disqualified Stock) issued after the date of this Indenture (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of this paragraph); provided that that, at the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price time of such stock options;
(f) so long as no Default has occurred and is continuingissuance, the repurchase or other acquisition Company, after giving effect to such issuance on a pro forma basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 2.0 to 1.0 for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation most recent Four- Quarter Period; (as a free allocation or otherwise4) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or the Company or any Restricted Subsidiary of the Company held by any former member of the Holdings' or the Company’s 's (or any of its Restricted their Subsidiaries’') management committee or any former officer, employee or director of Holdings or the Company pursuant to any management equity subscription agreement, stock option agreement, employment agreement or stock option agreement in effect as of the Issue Dateother similar agreements and any dividends or distributions to Holdings to fund such purchase, redemption or other acquisition or retirement; provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 (x) $1.5 million in any twelve-month periodcalendar year (with unused amounts in any calendar year being carried over to succeeding calendar years) plus (y) the aggregate cash proceeds received by Holdings or the Company during such calendar year from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries and (B) no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, further, further that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority aggregate cash proceeds referred to in (y) above shall be excluded from clause (c)(ii) of the disinterested members preceding paragraph; (5) the making of the Board of Directors;
(h) distributions, loans or advances to Holdings in an amount not to exceed $1.5 million per annum in order to permit Holdings to pay the ordinary course operating expenses of business to Affiliates Holdings (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses); (6) if no Default or Persons with which the Company Event of Default shall have occurred and be continuing or would occur as a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdictionconsequence thereof, other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
7.5 million since the date of this Indenture; (i7) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (8) distributions to Holdings and the Current Owners to fund the Transactions and (9) so long as no Default has occurred and the Company is continuingtreated as a partnership or disregarded as an entity separate from its owners for federal income tax purposes, advances constituting Investment or loans distributions to directors, officers and employees the partners of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at an amount with respect to any one time outstanding in the aggregate;
(j) other Restricted Payments period after June 30, 1998 not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with Tax Amount of the Permitted Closing StepsCompany for such period. The Board of Directors Management Committee may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $€1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Reference Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Reference Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date January 1, 2005 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Reference Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Reference Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $€2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 €2,000,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment Investments or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;outstanding; and
(j) other Restricted Payments not to exceed $€15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Indenture (CGG), Indenture (CGG Holding B.V.)
Restricted Payments. The Company shall not, and Borrower shall not permit make any of its Restricted Subsidiaries to, directly or indirectly, Payment other than (i) purchasewith respect to amounts received by the Borrower in accordance with Section 9.01 (in the case of Interest Proceeds and Principal Proceeds) or any other provision of this Agreement or the Facility Documents which expressly requires or permits payments to be made to or amounts to be reimbursed to the Equityholder, redeem (ii) on the date of the initial Advance, to the Equityholder or otherwise acquire or retire for value (including, without limitation, any other seller of Collateral Assets in the amount set forth in the Notice of Borrowing and funds flow delivered to the Administrative Agent in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect toAdvance, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments using the proceeds of Advances if the Borrowing Base Test is satisfied immediately prior to and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and immediately after giving effect to such distribution; provided that any Restricted Payment:
Payment made pursuant to clause (aiii) shall be limited to four such Restricted Payments per any calendar year or (iv) using amounts on deposit in the Principal Collection Account if (x) both immediately prior to and immediately after giving effect to such distribution, no Default or Event of Default shall have has occurred and be continuing or would occur as a consequence thereof;
(b) the Company wouldis continuing, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount Diversity Score as the date of all dividends such distribution equals or exceeds 16 and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such each Collateral Quality Test (other than the Minimum Diversity Score Test) is satisfied as of such date and (iz) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Companyafter giving effect to such distribution, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata forma basis), is less than the sum (without duplication) of the following: sufficient amounts will be available to pay amounts owing under items (A) 50% of the cumulative Consolidated Net Income of the Company for the period through (taken as one accounting periodI) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified StockSection 9.01(a)(i); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition Restricted Payment made pursuant to clause (iv) shall be excluded from clause (c)(B) of limited to two such Restricted Payments per any calendar year unless otherwise agreed by the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or Administrative Agent in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month periodsole discretion; provided, further, that such agreement or such repurchaseupon request from the Borrower, redemption or other acquisition or retirement or the agreement are approved by a majority of Administrative Agent may waive the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” limitations set forth in this Indenture clauses (in the case of a designationiii) and (iv) with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed respect to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined Permitted RIC Distributions in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeits sole discretion.
Appears in 2 contracts
Sources: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (icontingent or otherwise) purchaseto do so, redeem or otherwise acquire issue or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) sell any Equity Interests of the Company or accept any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may becapital contributions, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to that, so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would occur as a consequence thereofresult therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Company would, at Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the time common stock or other common Equity Interests of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andPerson;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such Restricted Paymentpayments by Holdings, together with to repurchase or redeem (xor to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of all other Restricted Payments made payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the Company amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and its Restricted Subsidiaries after expenses, payments by the Issue Date Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (excluding Restricted Payments permitted ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (bi) through and (eii) andin an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent deducted in computing Consolidated Net Incomeattributable to the assets, (fincome or activities of the Borrower and its Subsidiaries) and (giv) distributions to Holdings (or to make distributions to any direct or indirect parent of the next succeeding paragraphHoldings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), and (y) that the aggregate amount of all dividends payments under clauses (iii) and other payments (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity of Holdings), so long as such (other than (i) dividends Holdings (or distributions payable in the direct or indirect holders of the Equity Interests (other than Disqualified Stockof Holdings) of the Companyuses such distributions substantially concurrently to pay its Taxes, (ii) dividends or distributions payable such Taxes are attributable to the Company assets, income or any activities of the Borrower and its Restricted Subsidiaries or and (iii) if any refunds related to any such Permitted Tax Distribution received by Holdings (or the direct or indirect holders of the Equity Interests of Holdings) shall promptly be returned by Holdings to the Borrower;
(f) Restricted Subsidiary making Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such dividend Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment is not a Wholly Owned Restricted Subsidiarymade (and immediately after giving effect thereto), dividends to its shareholders (i) Holdings shall be in compliance, on a pro rata basis)Pro Forma Basis, is less with a Consolidated Total Lease Adjusted Leverage Ratio of not more than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company 4.50:1.00, for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter recent Measurement Period for which internal financial statements are available at available, and (ii) prior to the time payment or making of such Restricted Payment Payments, Holdings or the Borrower shall have delivered to the Administrative Agent a certificate executed by the chief financial officer, demonstrating in reasonable detail (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bincluding all applicable calculations) 100% of the aggregate of (1) (x) the net cash proceeds amount of Cumulative Credit Availability immediately prior to such Restricted Payment and the amount thereof to be so applied, and (y) permitted pursuant to this Section 7.06(f), and (2) the fair market value of Strategic Assets transferred or conveyed Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the Company preceding clause (as valued at the time of transfer or conveyance to the Companyi);
(g) after an IPO, and as determined in the manner contemplated (i) any Restricted Payment by the definition Borrower or any other direct or indirect parent of the term “fair market value”), in each case Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by the Company since the Issue Date as a contribution to (or contributed to) Holdings and its common equity capital or Subsidiaries from the issue or sale such IPO; and
(h) Repurchases of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests employees deemed to occur upon the exercise of stock options, options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time tax withholding obligation of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time options or warrants and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith approved by the Board of Directors) and an Officers’ Certificate certifying Directors so long as the exercise of such stock option or warrant would not give rise to a Change of Control; provided, that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cashthat may be made for a particular purpose pursuant to Sections 7.06(c) through and including 7.06(e) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued reduced dollar-for-dollar by the Company amount of any such payments made for such purpose in the form of an intercompany loan by the Borrower or such Restricted Subsidiary, as the case may be, one of its Subsidiaries to Holdings pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeSection 7.03(n).
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company); ;
(iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourFour-quarter periodQuarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date December 29, 2002 (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeiii), (fiv), (vi), (vii), (viii), (ix) and (gxi) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following the Issue Date commencing after December 29, 2002 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company (other than from a Restricted Subsidiary) since the Issue Date December 29, 2002 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus plus
(C) to the extent that any Restricted Investment that was made after the Issue Date December 29, 2002 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2ii) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate initial amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07Investment. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.preceding provisions will not prohibit:
Appears in 2 contracts
Sources: Indenture (Dominos Inc), Indenture (Dominos Pizza Government Services Division Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary of its Restricted Subsidiaries the Company held by any Person (other than any such Equity Interests owned by the Company or any of its Wholly Owned Restricted Subsidiaries); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Note Guarantees, as the case may be, except a payment of interest or principal and premium, if any, at the Stated MaturityMaturity thereof; or (iiid) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia) through (iiid) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income), (fc) and (gd) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following, of: (A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (C3) (A) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cashcash for an amount in excess of the initial amount of such Restricted Investment, the sum of (x) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); provided that the amount of any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the extent otherwise includible; plus (D4) if 50% of any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (5) to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, the lesser of (1x) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries Company's Investment in such Subsidiary as of the date of such redesignation and or (2y) the amount of such Investments. The foregoing provisions will not prohibit any fair market value as of the following:
date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit: (a) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Junior Notes in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Biii) (2) of the preceding paragraph;
; (c) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor Restricted Subsidiary with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
Equity Interests on a pro rata basis; and (e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $250,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment assets or securities that are required to be valued by this Section 4.07 shall be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination Directors in good faith, whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $3.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Restricted Payments. The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except:
(i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of payment by the Company Borrower or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of any dividend or the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment consummation of any dividend irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if at said on the date of declaration such or notice the payment would have complied with this Section 6.05 (assuming, in the provisions case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); provided that any Restricted Payment pursuant to this Indentureclause (i) shall be deemed to have utilized capacity under the exception that such Restricted Payment would have been permitted to have been made in reliance of at the time of declaration or notice of redemption, as applicable;
(bii) the redemptionBorrower may declare or make a Restricted Payment with respect to its Equity Interest payable solely in Qualified Equity Interests or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of such Equity Interests are not included in any determination of the Retained Excess Cash Flow Amount;
(iii) repurchase, retirement, defeasance redemption or other acquisition of any subordinated Indebtedness of for value by the Company or any Guarantor or any Borrower of, Equity Interests of the Company Borrower held by officers, directors or employees or former officers, directors or employees of the Borrower and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $15,000,000 during any twelve consecutive months (with unused amounts in any period being carried over to succeeding periods; provided, that the total amount of such purchases, redemptions or other acquisitions under this clause (iii) in any twelve consecutive months shall not exceed $25,000,000); provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Borrower or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in exchange forconnection with a repurchase of Equity Interests of the Borrower from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section 6.05;
(iv) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in connection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights;
(v) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Company) of, other Equity Interests of Borrower or an employee stock ownership plan or to a trust established by the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company Borrower or any of its Restricted SubsidiariesSubsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided that such net cash proceeds are not included in any determination of the Retained Excess Cash Flow Amount;
(evi) repurchases payments or distributions to dissenting stockholders of a Person acquired by the Borrower or a Restricted Subsidiary pursuant to an Asset Acquisition permitted by Section 6.11;
(vii) any Restricted Subsidiary may declare or make a Restricted Payment with respect to the Equity Interests of such Restricted Subsidiary to the Borrower or any other Restricted Subsidiary (and, in the case of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to each owner of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock optionsRestricted Subsidiary such that the Borrower or Restricted Subsidiary receives at least its pro rata share of such dividend or distribution);
(fviii) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances Payments in the ordinary course form of business to Affiliates or Persons with which dividends on the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Borrower’s common stock in an aggregate amount not to exceed in any 12-month period $7,500,000 outstanding at any one time20,000,000; provided that after giving effect thereto no Event of Default shall have occurred and be continuing;
(iix) so long as no Default has occurred Restricted Payments up to an aggregate amount not to exceed the greater of $30,000,000 and is continuing, advances constituting Investment or loans to directors, officers and employees 20.0% of Consolidated EBITDA of the Company Borrower and its Restricted Subsidiaries in (calculated on a Pro Forma Basis) for the ordinary course most recent Test Period ending prior to such date of business determination for bona fide business purposes not in excess which financial statements have been delivered to the Lenders pursuant to Section 4.01 or 5.01 of €1,000,000 this Agreement (or, prior to the initial delivery under this Agreement, of the Original Credit Agreement); provided that, at any one the time outstanding in the aggregateof, and after giving effect thereto on a Pro Forma Basis no Event of Default shall have occurred and be continuing;
(jx) other [reserved];
(xi) [reserved];
(xii) Restricted Payments in an amount not to exceed $15,000,000 the portion of the Retained Excess Cash Flow Amount on the date of such election that the Borrower elects to apply to this Section 6.05(xii) in a written notice of a Responsible Officer thereof, which notice shall set forth the aggregateRetained Excess Cash Flow Amount (and the calculation thereof in reasonable detail) immediately prior to such election and the amount thereof elected to be so applied; provided that after giving effect thereto on a Pro Forma Basis (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Net Leverage Ratio is equal to or less than 3.25 to 1.00; and
(kxiii) Investments in connection with other Restricted Payments; provided that after giving effect thereto on a Pro Forma Basis (i) no Event of Default shall have occurred and be continuing and (ii) the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount Consolidated Net Leverage Ratio is equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiaryor less than 1.75:1.00.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Credit Agreement (Donnelley Financial Solutions, Inc.), Credit Agreement (Donnelley Financial Solutions, Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any distribution, dividend or payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (except for dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or Company, any Restricted Subsidiary of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any direct or indirect parent of its Restricted Subsidiaries)the Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as except the case may be, except a scheduled payment of interest and Liquidated Damages, if any, or principal and premium, if any, at the Stated MaturityMaturity thereof; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time date of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of such Restricted Payment and all other Restricted Payments made by since the Company and its Restricted Subsidiaries after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv) and (gvi) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date to date of this Indenture through the end last full fiscal quarter of the Company’s most recently ended fiscal quarter Company for which internal financial statements are available at the time of such that Restricted Payment (or, if such the Consolidated Net Income for such that period is a deficit, less minus 100% of such the deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date hereof as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment unless already included in Consolidated Net Income of the Company for that period; plus (Div) if any Unrestricted Subsidiary is redesignated by the Company as a Restricted SubsidiarySubsidiary of the Company after the date hereof, an amount equal to the lesser of (1A) an amount equal to the net book value of the Company's Investment in the Unrestricted Subsidiary at the time of the redesignation and (B) the fair market value of the Investments previously made by Company's Investment in the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary as at the time of the date of redesignation and (2) the amount of such Investmentsredesignation. The foregoing provisions will shall not prohibit any of the following:
prohibit: (ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or any Restricted Subsidiary of its Restricted Subsidiaries the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) (ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its such Restricted Subsidiaries;
(e) repurchases of Subsidiary's common Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any such Restricted Subsidiary receives at least its pro rata share (and in like form) of the Company for allocation dividend or distribution in accordance with its common Equity Interests; (as a free allocation or otherwisev) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateagreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall does not exceed €$1,000,000 per individual member of management or $2,500,000 in the aggregate in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or (vi) the agreement are approved deemed repurchase of Capital Stock by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to on the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of the Company or a Subsidiary in such jurisdiction stock options; and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, (vii) Restricted Payments in an aggregate principal amount not to exceed $7,500,000 outstanding at 15,000,000; provided that the Company will not and will not permit any one time;
of its Restricted Subsidiaries to make any Restricted Payment contemplated by clauses (iiii) through (vii) above so long as no a Default or an Event of Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors of the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes The aggregate fair market value of making such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the newly designated Unrestricted Subsidiary so designated shall be deemed to be Restricted Payments at an Investment made as of the time of such designationdesignation and will either reduce the amount available for Restricted Payments under this Section 4.07 or reduce the amount available for future Investments under one or more clauses of the definition of Permitted Investments, in an amount equal to as the fair market value of such Investments at the time of such designationCompany shall determine. Such designation shall only be permitted if such Restricted Payments investment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” . The Board of Directors of the Company may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes Company if the redesignation would not cause a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07Default. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment on the date of such Restricted Payment. The fair market value of any non-cash Restricted Payment assets or securities that are required to be valued by this Section 4.07 shall be determined in the manner contemplated good faith by the definition of the term “fair market value,” Company and the results of such determination shall be evidenced by set forth in an Officers’ ' Certificate delivered to the Trustee. The Company's determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $25,000,000. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Ames Department Stores Inc), Indenture (Ames Department Stores Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (icontingent or otherwise) purchaseto do so, redeem or otherwise acquire issue or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) sell any Equity Interests of the Company or accept any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may becapital contributions, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to that, so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would occur as a consequence thereofresult therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Company would, at Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the time common stock or other common Equity Interests of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andPerson;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such Restricted Paymentpayments by Holdings, together with to repurchase or redeem (xor to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of all other Restricted Payments made payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the Company amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and its Restricted Subsidiaries after expenses, payments by the Issue Date Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (excluding Restricted Payments permitted ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (bi) through and (eii) andin an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent deducted in computing Consolidated Net Incomeattributable to the assets, (fincome or activities of the Borrower and its Subsidiaries) and (giv) distributions to Holdings (or to make distributions to any direct or indirect parent of the next succeeding paragraphHoldings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), and (y) that the aggregate amount of all dividends payments under clauses (iii) and other payments (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity of Holdings), so long as such (other than (i) dividends Holdings (or distributions payable in the direct or indirect holders of the Equity Interests (other than Disqualified Stockof Holdings) of the Companyuses such distributions substantially concurrently to pay its Taxes, (ii) dividends or distributions payable such Taxes are attributable to the Company assets, income or any activities of the Borrower and its Restricted Subsidiaries or and (iii) if any refunds related to any such Permitted Tax Distribution received by Holdings (or the direct or indirect holders of the Equity Interests of Holdings) shall promptly be returned by Holdings to the Borrower;
(f) Restricted Subsidiary making Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such dividend Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment is not a Wholly Owned Restricted Subsidiarymade (and immediately after giving effect thereto), dividends to its shareholders (i) Holdings shall be in compliance, on a pro rata basis)Pro Forma Basis, is less with a Consolidated Total Lease Adjusted Leverage Ratio of not more than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company 4.50:1.00, for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter recent Measurement Period for which internal financial statements are available at available, and (ii) prior to the time payment or making of such Restricted Payment Payments, Holdings or the Borrower shall have delivered to the Administrative Agent a certificate executed by the chief financial officer, demonstrating in reasonable detail (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bincluding all applicable calculations) 100% of the aggregate of (1) (x) the net cash proceeds amount of Cumulative Credit Availability immediately prior to such Restricted Payment and the amount thereof to be so applied, and (y) permitted pursuant to this Section 7.06(f), and (2) the fair market value of Strategic Assets transferred or conveyed Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the Company preceding clause (as valued at the time of transfer or conveyance to the Companyi);
(g) after an IPO, and as determined in the manner contemplated (i) any Restricted Payment by the definition Borrower or any other direct or indirect parent of the term “fair market value”), in each case Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by the Company since the Issue Date as a contribution to (or contributed to) Holdings and its common equity capital or Subsidiaries from the issue or sale such IPO; and
(h) Repurchases of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests employees deemed to occur upon the exercise of stock options, options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such stock options;
(f) options or warrants and approved by the Board of Directors so long as no Default has occurred and is continuing, the repurchase or other acquisition for value exercise of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or such stock option agreement in effect as or warrant would not give rise to a Change of the Issue DateControl; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;and
(i) so long as no Default has occurred and is continuing, advances constituting Investment the Specified Dividend on or loans to directors, officers and employees of within seven (7) days after the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregateAmendment No. 1 Effective Date;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. The Company shall not, and shall not permit Neither the Borrower nor any of its Restricted Subsidiaries to, directly shall declare or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”)Payment, unless, at the time of and after giving effect to such Restricted Paymentexcept:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement repurchase or other acquisition prepayment of subordinated any Permitted Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(dii) the payment defeasance, redemption, repurchase or prepayment of any dividend Permitted Subordinated Indebtedness; PROVIDED the aggregate amount so defeased, redeemed, repurchased or distribution by a Restricted Subsidiary prepaid after the Closing Date shall not exceed an amount equal to ten percent (10%) of the Company to the Company or any of its Restricted SubsidiariesAggregate Commitment;
(eiii) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, connection with the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue DateInterests; provided PROVIDED, that the aggregate purchase price paid for of all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €$1,000,000 in any twelve-month period; provided, further, that such agreement the aggregate since the Closing Date or such repurchase, redemption or other acquisition or retirement or larger amount as may be agreed to by the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregateRequired Lenders; and
(kiv) Investments in connection with where the Permitted Closing Steps. The Board consideration therefor consists solely of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation Equity Interests (but excluding Disqualified Stock) of the Borrower or its Subsidiaries provided no Change of Control would not cause occur as a Default (except at any time during which result thereof; PROVIDED, HOWEVER, that the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationdescribed in CLAUSES(I), in an amount equal to the fair market value of such Investments at the time of such designation. Such designation (II) and (III) above shall only not be permitted if such Restricted Payments would either a Default shall have occurred and be permitted continuing at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) declaration or securities proposed to be transferred payment thereof or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteewould result therefrom.
Appears in 2 contracts
Sources: Credit Agreement (Landcare Usa Inc), Credit Agreement (Transportation Components Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (icontingent or otherwise) purchaseto do so, redeem or otherwise acquire issue or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) sell any Equity Interests of the Company or accept any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may becapital contributions, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to that, so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would occur as a consequence thereofresult therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Company would, at Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the time common stock or other common Equity Interests of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andPerson;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such Restricted Paymentpayments by Holdings, together with to repurchase or redeem (xor to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of all other Restricted Payments made payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the Company amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and its Restricted Subsidiaries after expenses, payments by the Issue Date Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (excluding Restricted Payments permitted ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (bi) through and (eii) andin an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent deducted in computing Consolidated Net Incomeattributable to the assets, (fincome or activities of the Borrower and its Subsidiaries) and (giv) distributions to Holdings (or to make distributions to any direct or indirect parent of the next succeeding paragraphHoldings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), and (y) that the aggregate amount of all dividends payments under clauses (iii) and other payments (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity of Holdings), so long as such (other than (i) dividends Holdings (or distributions payable in the direct or indirect holders of the Equity Interests (other than Disqualified Stockof Holdings) of the Companyuses such distributions substantially concurrently to pay its Taxes, (ii) dividends or distributions payable such Taxes are attributable to the Company assets, income or any activities of the Borrower and its Restricted Subsidiaries or and (iii) if any refunds related to any such Permitted Tax Distribution received by Holdings (or the direct or indirect holders of the Equity Interests of Holdings) shall promptly be returned by Holdings to the Borrower;
(f) Restricted Subsidiary making Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such dividend Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment is not a Wholly Owned Restricted Subsidiarymade (and immediately after giving effect thereto), dividends to its shareholders (i) Holdings shall be in compliance, on a pro rata basis)Pro Forma Basis, is less with a Consolidated Total Lease Adjusted Leverage Ratio of not more than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company 4.50:1.00, for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter recent Measurement Period for which internal financial statements are available at available, and (ii) prior to the time payment or making of such Restricted Payment Payments, Holdings or the Borrower shall have delivered to the Administrative Agent a certificate executed by the chief financial officer, demonstrating in reasonable detail (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bincluding all applicable calculations) 100% of the aggregate of (1) (x) the net cash proceeds amount of Cumulative Credit Availability immediately prior to such Restricted Payment and the amount thereof to be so applied, and (y) permitted pursuant to this Section 7.06(f), and (2) the fair market value of Strategic Assets transferred or conveyed Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the Company preceding clause (as valued at the time of transfer or conveyance to the Companyi);
(g) after an IPO, and as determined in the manner contemplated (i) any Restricted Payment by the definition Borrower or any other direct or indirect parent of the term “fair market value”), in each case Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by the Company since the Issue Date as a contribution to (or contributed to) Holdings and its common equity capital or Subsidiaries from the issue or sale such IPO;
(h) Repurchases of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests employees deemed to occur upon the exercise of stock options, options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such stock options;
(f) options or warrants and approved by the Board of Directors so long as no Default has occurred and is continuing, the repurchase or other acquisition for value exercise of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or such stock option agreement in effect as or warrant would not give rise to a Change of the Issue DateControl; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;and
(i) so long as no Default has occurred and is continuing, advances constituting Investment the Specified Amendment No. 1 Dividend on or loans to directors, officers and employees of within seven (7) days after the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregateAmendment No. 1 Effective Date;
(j) other the Specified Amendment No. 2 Dividend on or within seven (7) days after the Amendment No. 2 Effective Date; provided, that the amount of Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors that may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause made for a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary particular purpose pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments Sections 7.06(c) through and including 7.06(e) shall be reduced dollar-for-dollar by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of any such Investments. Any designation or redesignation payments made for such purpose in the form of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith an intercompany loan by the Board Borrower or one of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed its Subsidiaries to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, Holdings pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeSection 7.03(n).
Appears in 2 contracts
Sources: Amendment No. 4 (Bojangles', Inc.), Amendment No. 4 (Bojangles', Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary of its Restricted Subsidiaries the Company held by any Person (other than any such Equity Interests owned by the Company or any of its Wholly Owned Restricted Subsidiaries); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Note Guarantees, as the case may be, except a payment of interest or principal and premium, if any, at the Stated MaturityMaturity thereof; or (iiid) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia) through (iiid) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income), (fc) and (gd) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following, of: (A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (C3) (A) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cashcash for an amount in excess of the initial amount of such Restricted Investment, the sum of (x) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); provided that the amount of any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the extent otherwise includible; plus (D4) if 50% of any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (5) to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, the lesser of (1x) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries Company's Investment in such Subsidiary as of the date of such redesignation and or (2y) the amount of such Investments. The foregoing provisions will not prohibit any fair market value as of the following:
date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit: (a) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor Restricted Subsidiary with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (dc) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; and (fd) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $250,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment assets or securities that are required to be valued by this Section 4.07 shall be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination Directors in good faith, whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $3.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to(a) Declare or make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), Payment unless, at the time of and immediately after giving effect to such Restricted Payment:
, such Restricted Payment, together with the aggregate amount of all other Restricted Payments (aincluding the fair market value of any non-cash amount) made by the Borrower and the Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by Sections 7.06(b)(i), (ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (c) thereof), (vi)(C) and (ix), but excluding all other Restricted Payments permitted by Section 7.06(b) (and for the avoidance of doubt, all other Permitted Investments)), is less than the Available Amount at such time; provided to the extent such Restricted Payment is to be made out of amounts under clause (b) of the definition of “Available Amount,” (x) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
thereof and (by) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant Permitted Ratio Debt would be permitted to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andbe incurred.
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through The provisions of Section 7.06(a) will not prohibit:
(ei) andthe payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 7.06;
(a) the redemption, repurchase, retirement or other acquisition of any Equity Interest, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”), or Subordinated Indebtedness, of any Loan Party or any Equity Interest of any Parent Entity of the Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests of the Borrower or any Parent Entity thereof to the extent deducted contributed to the Borrower (in computing Consolidated Net Incomeeach case, other than any Disqualified Stock) (“Refunding Capital Stock”), (fb) the declaration and (g) payment of dividends on Treasury Capital Stock out of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account proceeds of the Company’s substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Borrower or to an employee stock ownership plan or any trust established by the Borrower or any of its Restricted Subsidiaries’ Equity Interests ) of Refunding Capital Stock, and (including, without limitation, any such payment in connection with any merger or consolidation involving the Companyc) or if immediately prior to the direct or indirect holders retirement of Treasury Capital Stock, the Company’s Equity Interests in their capacity as such declaration and payment of dividends thereon was permitted under clause (vi) of this Section 7.06(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity of the Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(iiii) dividends the defeasance, redemption, repurchase, exchange or distributions payable other acquisition or retirement of (1) Junior Financing of the Borrower or a Subsidiary Guarantor made by exchange for, or out of the proceeds of a sale made within 90 days of, new Indebtedness of the Borrower or a Subsidiary Guarantor or (2) Disqualified Stock made by exchange for, or out of the proceeds of a sale made within 90 days of, Disqualified Stock of the Borrower or a Subsidiary Guarantor that, in each case, is incurred in compliance with Section 7.03;
(iv) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the CompanyBorrower or any Parent Entity thereof held by any future, present or former employee, director, officer, manager or consultant (iior their respective Controlled Investment Affiliates or Immediate Family Members) dividends or distributions payable to of the Company Borrower, any of its Subsidiaries or any of its Restricted Subsidiaries Parent Entities pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or equity holder agreement (iii) if including, for the Restricted Subsidiary making avoidance of doubt, any principal and interest payable on any notes issued by the Borrower or any Parent Entity thereof in connection with such dividend is not a Wholly Owned Restricted Subsidiaryrepurchase, dividends to its shareholders on a pro rata basisretirement or other acquisition), is less than the sum (without duplication) including any Equity Interest rolled over by management of the following: Borrower or any Parent Entity thereof in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this Section 7.06(b)(iv) does not exceed $10,000,000 in any fiscal year (which amount shall be increased to $20,000,000 following the consummation of a Qualifying IPO) (with unused amounts in any fiscal year being carried over to the succeeding fiscal years); provided, further, that each of the amounts in any fiscal year under this clause may be increased by an amount not to exceed:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) cash proceeds from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the issuance or sale of Disqualified Stock or debt securities Equity Interests of any Parent Entity of the Company that have been converted intoBorrower, in each case to any future, present or former employees, directors, officers, managers, or exchanged consultants (or redeemed fortheir respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its Parent Entities that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary are excluded from the calculation of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoAvailable Amount; plus
(B) the cash proceeds of life insurance policies received by the Borrower, or exchanged or redeemed forthe Restricted Subsidiaries or, Disqualified Stock), plus (C) to the extent that such proceeds are contributed to a Loan Party, any Restricted Investment that was made Parent Entity of the Borrower, in each case, after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment Closing Date; less
(less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2C) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied Restricted Payments previously made with the provisions cash proceeds described in clauses (A) and (B) of this Indenture;
clause (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockiv); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement cancellation of Indebtedness owing to the Borrower or such repurchaseany Restricted Subsidiary from any future, redemption present or other acquisition former employees, directors, officers, managers, or retirement consultants (or the agreement are approved by a majority their respective Controlled Investment Affiliates or Immediate Family Members) of the disinterested members Borrower, any Parent Entity of the Board Borrower or any Restricted Subsidiary in connection with a repurchase of DirectorsEquity Interests of the Borrower or any Parent Entities thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;
(hv) loans the declaration and payment of dividends or advances distributions to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary issued in the ordinary course accordance with Section 7.03 or any class or series of business to Affiliates or Persons with which the Company or a Preferred Stock of any Restricted Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans dividends or advances distributions are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described included in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of Fixed Charges”;
(avi) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (bA) the amount declaration and payment of such Investments. Any designation dividends or redesignation of a Subsidiary shall be evidenced distributions to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation holders of any Investment relating thereto (as determined in good faith by the Board class or series of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments Designated Preferred Stock (other than cashDisqualified Stock) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as Borrower after the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.Closing Date;
Appears in 2 contracts
Sources: Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Restricted Payments. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of Holdings' or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Holdings or any of its Subsidiaries) or to the direct or indirect holders of Holdings' or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Qualified Capital Stock of Holdings or the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyHoldings) any Equity Interests of the Company Holdings or any direct or indirect parent of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Holdings; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beDebentures (other than intercompany Indebtedness), except a payment of interest or principal at Stated Maturitystated maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company Holdings would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourFour-quarter periodQuarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b3), (4) through (e) and, but only to the extent deducted in computing Consolidated Net Incomesuch Restricted Payment is made with the cash proceeds received by Holdings or one of its Restricted Subsidiaries from any "key man" life insurance policies), (f) 5), (7), (8) and (g9) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company Holdings for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s Holdings' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of net proceeds (1) the net cash proceeds and (2) including the fair market value of Strategic Assets transferred or conveyed to the Company property other than cash (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated good faith by the definition Management Committee as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the term “fair market value”value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing), in each case ) received by the Company Holdings since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) of Holdings (excluding any net proceeds from an Equity Offering or capital contribution to the extent used to redeem Debentures in accordance with the optional redemption provisions of the Debentures) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company Holdings that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockHoldings), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) ), plus (Div) if any dividends (the fair market value of property other than cash shall be determined in good faith by the Management Committee as evidenced by a certificate filed with the trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing) received by Holdings or a Restricted Subsidiary after the date of this Indenture from any Unrestricted Subsidiary of Holdings, to the extent that such dividends were not otherwise included in Consolidated Net Income of Holdings for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of Holdings on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (1A) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries Holdings' Investment in such Subsidiary as of the date of such redesignation and or (2B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the amount Fixed Charge Coverage Ratio of Holdings on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of Holdings Investment in such Subsidiary as of the date of such Investmentsredesignation. The foregoing Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph will not prohibit any of the following:
(a1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof of such dividend or notice of such redemption if at said the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration such payment would or notice; (2) if no Event of Default shall have complied with occurred and be continuing or shall occur as a consequence thereof, the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Capital Stock of Holdings (the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries "Retired Capital Stock"), either (i) solely in exchange forfor Qualified Capital Stock of Holdings (the "Refunding Capital Stock"), or out (ii) through the application of the net cash proceeds of the a substantially concurrent sale for cash (other than to a Restricted Subsidiary of Holdings) of Qualified Capital Stock of Holdings, and, in the Companycase of subclause (i) ofof this clause (2), other Equity Interests if immediately prior to the retirement of the Company Retired Capital Stock the declaration and payment of dividends thereon was permitted under clause (3) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement; provided that at the time of the declaration of any such dividends on the Refunding Capital Stock, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (3) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than any Disqualified Stock) issued after the date of this Indenture (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of this paragraph); provided that that, at the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price time of such stock options;
issuance, Holdings, after giving effect to such issuance on a pro forma basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 1.75 to 1.0 for the most recent Four-Quarter Period; (f4) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Holdings or any Restricted Subsidiary of the Company Holdings held by any former member of the Company’s Holdings' (or any of its Restricted Subsidiaries’') management committee or any former officer, employee or director of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement, stock option agreement, employment agreement or stock option agreement in effect as of the Issue Dateother similar agreements; provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 (x) $1.5 million in any twelve-month periodcalendar year (with unused amounts in any calendar year being carried over to succeeding calendar years) plus (y) the aggregate cash proceeds received by Holdings or the Company during such calendar year from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries and (B) no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, further, further that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority aggregate cash proceeds referred to in (y) above shall be excluded from clause (c)(ii) of the disinterested members preceding paragraph; (5) if no Default or Event of the Board of Directors;
(h) loans Default shall have occurred and be continuing or advances in the ordinary course of business to Affiliates or Persons with which the Company or would occur as a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdictionconsequence thereof, other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
12.0 million since the date of this Indenture; (i6) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (7) distributions to the Current Owners to fund the Transactions and (8) so long as no Default has occurred and Holdings is continuingtreated as a partnership or disregarded as an entity separate from its owners for federal income tax purposes, advances constituting Investment or loans distributions to directorsthe partners of Holdings in an amount with respect to any period after June 30, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments 1998 not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing StepsTax Amount of Holdings for such period. The Board of Directors Management Committee may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company Holdings and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company Holdings or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.45
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Restricted Payments. (a) The Company shall notwill not declare, and shall not pay or make any dividend or distribution (in cash, property or obligations) on any shares of capital stock (now or hereafter outstanding) of the Company, or on any warrants, options or other rights with respect to any class of capital stock (now or hereafter outstanding) of the Company, or apply or permit any Subsidiary to apply, any of its Restricted Subsidiaries tofunds, directly property or indirectly, (i) assets to the purchase, redeem redemption, sinking fund, or otherwise acquire other retirement of, or retire for value (includingagree, without limitation, in connection with or permit any merger or consolidation involving the Company) any Equity Interests Subsidiary of the Company to agree, to purchase or redeem (or set aside funds to purchase or redeem) any shares of any class of capital stock (now or hereafter outstanding) of the Company, or warrants, options or other rights with respect to any class of capital stock (now or hereafter outstanding) of the Company (all or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the foregoing, "RESTRICTED PAYMENTS"); PROVIDED, HOWEVER, that so long as the Company or any of its remains qualified as a REIT under the Code, the Company may make Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment Payments if and to the Notes or extent (but only to the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iiiextent) make any Restricted Investment (all such payments and other actions set forth in clauses that: (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing at the time of declaration of such Restricted Payment, and (ii) immediately after giving effect to the making of such Restricted Payment, the sum of all Restricted Payments made subsequent to December 31, 1995 would not exceed the sum of (1) $10,000,000, (2) 100% of Cash Flow accumulated subsequent to December 31, 1995, and (3) the net proceeds to the Company since December 31, 1995 from the issuance of any shares of its capital stock or any warrants, options or other rights with respect thereto; PROVIDED FURTHER that the Company may make a Restricted Payment if a Default (but not an Event of Default) shall have occurred and be continuing if such Restricted Payment was declared but not yet paid prior to the occurrence of such Default and the making of such Restricted Payment would occur as a consequence thereof;be permitted under clause (ii) of this Section 5.16(a).
(b) The provisions of Section 5.16(a) to the contrary notwithstanding, the Company wouldmay declare and make a Restricted Payment if a Default or Event of Default shall have occurred and be continuing at the time that such Restricted Payment was declared, if (i) the declaration and payment of such Restricted Payment is required in order for the Company to continue to qualify as a REIT under the Code, and (ii) the Default or Event of Default existing at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is declaration did not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) result from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and a breach of this Section 5.16, (2) a failure to make any payment or prepayment of principal or interest on the fair market value of Strategic Assets transferred or conveyed Notes (including failure to pay the Company (as valued at the time of transfer or conveyance Make-Whole Premium pursuant to the CompanySection 2, and as determined in the manner contemplated by the definition of the term “fair market value”when due), or (3) the occurrence of any event specified in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockSection 6.1(a) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Sources: Note Purchase Agreement (Health Care Reit Inc /De/), Note Purchase Agreement (Health Care Reit Inc /De/)
Restricted Payments. The Company shall Credit Parties will not, and shall not nor will they permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) purchasedeclare, redeem order, make or otherwise acquire set apart any sum for or retire for value (including, without limitation, in connection with pay any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may bePayment, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) to make dividends payable solely in the same class of Equity Interest of such Person, (b) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries), (c) dividends 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 clause (c) of Section 6.10, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;
(b) the Company wouldresult therefrom and, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at thereto, that the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to Borrower shall be in compliance on a Pro Forma Basis with the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
Leverage Incurrence Test, (cd) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through in an aggregate amount not to exceed $2,500,000 per fiscal year, (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options, options if such Equity Interests represent a portion of the exercise price of such stock options;
, (f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary (other than Disqualified Stock) of the Company held by any member future, present or former employee, director or consultant of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management equity subscription agreement plan or stock option agreement in effect as of the Issue Date; plan or any other management or employee benefit plan or agreement, provided that the aggregate price paid for all amount of Restricted Payments made pursuant to this clause (f) shall not exceed in any calendar year $2,000,000 (it being understood that the cancellation of Indebtedness owing to the Company from any such repurchasedpersons in connection with any such repurchase, redeemed, acquired retirement or retired other acquisition of Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be constitute a Restricted Payments at Payment for purposes of this Section 6.10 or any other provision of this Agreement, (g) after a Qualified IPO, the time of such designationBorrower may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes 5% per annum of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced net proceeds received by the lesser Borrower from any public offering of (a) an amount equal to the fair market value Equity Interests of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary Borrower and (bh) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms dividends of the definition Equity Interests of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeSubsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Riviera Holdings Corp), Credit Agreement (Riviera Holdings Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiaries, to, directly or indirectly, (ia) declare or pay any dividend or make any distribution on account of any Equity Interests of the Company or any of its Subsidiaries, other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to any Wholly Owned Subsidiary of the Company (other than Unrestricted Subsidiaries of the Company), (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any outstanding Equity Interests of the Company or EchoStar, any of its Restricted Subsidiaries (or any other Affiliate of EchoStar, other than any such Equity Interests owned by the Company or any of its Restricted SubsidiariesWholly Owned Subsidiaries (other than Unrestricted Subsidiaries of the Company); , (iic) make any payment on or with respect to, or voluntarily purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is expressly subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest in accordance with the scheduled mandatory redemption or principal at Stated Maturity; repayment provisions set forth in the original documentation governing such Indebtedness or (iiid) make any Restricted Investment (all such prohibited payments and other actions set forth in clauses (ia) through (iiid) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bii) the Company would, at the time of after giving effect to such Restricted Payment and after giving pro forma effect thereto as if the incurrence of any Indebtedness the net proceeds of which are used to finance such Restricted Payment had been made at Payment, the beginning Indebtedness to Cash Flow Ratio of the applicable four-quarter period, Company would not have been permitted exceeded 6.0 to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof1; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) date of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis)this Indenture, is less than the sum (without duplication) of the followingof: (A) 50the difference of cumulative (x) Consolidated Cash Flow determined at the time of such Restricted Payment (or, in case such Consolidated Cash Flow shall be a deficit, minus 100% of the cumulative such deficit) minus (y) 150% of Consolidated Net Income Interest Expense of the Company Company, each as determined for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date July 1, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), Payment; plus (B) an amount equal to 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to and its common equity capital or Subsidiaries from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests EchoStar (other than any such Equity Interests, Disqualified Stock or convertible debt securities Interests sold to a Restricted Subsidiary of the Company or EchoStar, and other than Disqualified Stock or convertible debt securities provided that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) any sale of Equity Interests of EchoStar shall only be included in such calculation to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal proceeds thereof are contributed to the fair market value capital of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary other than as of Disqualified Stock or Indebtedness), since the date of redesignation and (2) the amount of such InvestmentsIndenture. The foregoing provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said such date of declaration such payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d3) the payment of any dividend dividends on, or distribution by a Restricted Subsidiary of the Company to redemption of, the Company or any of its Restricted SubsidiariesDish Preferred Stock;
(e4) repurchases of Equity Interests deemed Investments in an aggregate amount not to occur upon exercise of stock options, if exceed $20 million; PROVIDED that such Equity Interests represent a portion Investments are in businesses of the exercise price of such stock optionstype described in Section 4.18;
(f5) so long as no Default has occurred and is continuing, Investments to fund the repurchase or other acquisition for value financing activity of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances DNCC in the ordinary course of its business in an amount not to Affiliates exceed, as of the date of determination, the sum of (A) $25.0 million plus (B) 30% of the aggregate cost to DNCC for each Satellite Receiver purchased by DNCC and leased by DNCC to a retail consumer in excess of 100,000 units;
(6) the purchase of employee stock options, or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction capital stock issued pursuant to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdictionemployee stock options, in an aggregate amount not to exceed $7,500,000 outstanding at 2 million in any one time;
(i) so long as no Default has occurred calendar year and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments an aggregate amount not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on 10 million since the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.this Indenture;
Appears in 2 contracts
Sources: Indenture (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to(a) Declare or make, directly or indirectly, any Restricted Payment or set aside any amount for any such purpose.
(b) Notwithstanding the provisions of paragraph (a) above:
(i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned transactions contemplated by the Company or any Plan of its Restricted Subsidiaries); Reorganization to occur on the Funding Date may be consummated on the Funding Date;
(ii) Holdings may make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, Restricted Payments so long as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of Payment Conditions are satisfied both before and after giving effect to such Restricted Payment:Payments;
(aiii) Holdings may make Restricted Payments for the repurchase, retirement or other acquisition for value of Equity Interests of Holdings held by any future, present or former employee or director 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 of Holdings or its Subsidiaries, provided that the aggregate amount of such Restricted Payments in any fiscal year shall not exceed $5,000,000, provided that at the time of any such Restricted Payment made pursuant to this clause (iii) and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing; and
(iv) Holdings may make Restricted Payments in any fiscal year commencing on or after January 1, 2011, so long as (x) immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent such Restricted Payments made pursuant to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests this clause (including, without limitation, any such payment in connection with any merger or consolidation involving the Companyiv) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is shall not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: exceed (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value Borrower’s Portion of Excess Cash Flow (as defined in the Investments previously made by the Company and its Restricted Subsidiaries Term Loan Credit Agreement (as in such Subsidiary as of effect on the date of redesignation hereof)) and (2) the amount sum of such Investments. The foregoing provisions will not prohibit any of the following:
(aaa) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
$30,000,000 plus (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(fbb) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation Excess Availability (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the such Restricted Payment after giving effect to any Loans incurred (or to be incurred) or Letters of Credit issued (or to be issued) on such date) shall exceed 20% of the asset(sTotal Commitment as then in effect, $20,000,000 minus (B) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, aggregate principal amount of Term Loans theretofore purchased pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeSection 10.09(iv).
Appears in 2 contracts
Sources: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (icontingent or otherwise) purchaseto do so, redeem or otherwise acquire issue or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) sell any Equity Interests of the Company or accept any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may becapital contributions, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to that, so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would occur as a consequence thereofresult therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Company would, at Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the time common stock or other common Equity Interests of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andPerson;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such Restricted Paymentpayments by Holdings, together with to repurchase or redeem (xor to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of all other Restricted Payments made payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the Company amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and its Restricted Subsidiaries after expenses, payments by the Issue Date Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (excluding Restricted Payments permitted ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (bi) through and (eii) andin an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent deducted in computing Consolidated Net Incomeattributable to the assets, (fincome or activities of the Borrower and its Subsidiaries) and (giv) distributions to Holdings (or to make distributions to any direct or indirect parent of the next succeeding paragraphHoldings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), and (y) that the aggregate amount of all dividends payments under clauses (iii) and other payments (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity of Holdings), so long as such (other than (i) dividends Holdings (or distributions payable in the direct or indirect holders of the Equity Interests (other than Disqualified Stockof Holdings) of the Companyuses such distributions substantially concurrently to pay its Taxes, (ii) dividends or distributions payable such Taxes are attributable to the Company assets, income or any activities of the Borrower and its Restricted Subsidiaries or and (iii) if any refunds related to any such Permitted Tax Distribution received by Holdings (or the direct or indirect holders of the Equity Interests of Holdings) shall promptly be returned by Holdings to the Borrower;
(f) Restricted Subsidiary making Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such dividend Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment is not a Wholly Owned Restricted Subsidiarymade (and immediately after giving effect thereto), dividends to its shareholders (i) Holdings shall be in compliance, on a pro rata basis)Pro Forma Basis, is less with a Consolidated Total Lease Adjusted Leverage Ratio of not more than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company 4.50:1.00, for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter recent Measurement Period for which internal financial statements are available at available, and (ii) prior to the time payment or making of such Restricted Payment Payments, Holdings or the Borrower shall have delivered to the Administrative Agent a certificate executed by the chief financial officer, demonstrating in reasonable detail (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bincluding all applicable calculations) 100% of the aggregate of (1) (x) the net cash proceeds amount of Cumulative Credit Availability immediately prior to such Restricted Payment and the amount thereof to be so applied, and (y) permitted pursuant to this Section 7.06(f), and (2) the fair market value of Strategic Assets transferred or conveyed Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the Company preceding clause (as valued at the time of transfer or conveyance to the Companyi);
(g) after an IPO, and as determined in the manner contemplated (i) any Restricted Payment by the definition Borrower or any other direct or indirect parent of the term “fair market value”), in each case Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by the Company since the Issue Date as a contribution to (or contributed to) Holdings and its common equity capital or Subsidiaries from the issue or sale such IPO;
(h) Repurchases of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests employees deemed to occur upon the exercise of stock options, options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such stock options;
(f) options or warrants and approved by the Board of Directors so long as no Default has occurred and is continuing, the repurchase or other acquisition for value exercise of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or such stock option agreement in effect as or warrant would not give rise to a Change of the Issue DateControl; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;and
(i) so long as no Default has occurred and is continuing, advances constituting Investment the Specified Amendment No. 1 Dividend on or loans to directors, officers and employees of within seven (7) days after the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregateAmendment No. 1 Effective Date;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
Specified Amendment No. 2 Dividend on or within seven (k7) Investments in connection with days after the Permitted Closing StepsAmendment No. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.2 Effective Date;
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any of its Restricted SubsidiariesSubsidiary); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beany guarantee thereof, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under Section 4.09 4.9 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv), (vi), (vii), (viii) and (gix) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company and its Restricted Subsidiaries for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of net proceeds (1) the net cash proceeds and (2) including the fair market value of Strategic Assets transferred property other than cash (determined in good faith by the Board of Managers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or conveyed to more, the Company (as valued at the time of transfer or conveyance to the Company, and value shall be as determined in the manner contemplated based upon an opinion or appraisal issued by the definition of the term “fair market value”an Independent Financial Advisor), in each case ) received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) of the Company (excluding any net proceeds from an Equity Offering or capital contribution to the extent used to redeem Notes in accordance with the optional redemption provisions of the Notes) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) ), plus (Div) if any dividends (the fair market value of property other than cash shall be determined in good faith by the Board of Managers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be as determined based upon an opinion or appraisal issued by an Independent Financial Advisor) received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (1A) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries Company's Investment in such Subsidiary as of the date of such redesignation and or (2B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation; provided, further that any increase in the amount of Restricted Payments permitted to be incurred as a result of application of subparagraphs (iii), (iv) or (v) above related to dividends, returns of capital or redesignation of foreign joint ventures shall be reduced by the difference between (A) the fair market value of any equipment (as determined by sales by the Company of comparable equipment to unaffiliated third parties) transferred to such Investmentsjoint ventures in reliance on subparagraph (xii) of the covenant entitled "Transactions with Affiliates" and (B) the value received by the Company or any Restricted Subsidiary from such joint venture with respect to such equipment transfer. The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests of the Company or subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Guarantors in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bii) of the preceding paragraph;
paragraph provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent, the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $5.0 million in the aggregate since the date of this Indenture (and shall be increased by the amount of any twelvenet cash proceeds to the Company from (x) sales of Equity Interests of the Parent to management employees subsequent to the date of this Indenture and (y) any "key-month periodman" life insurance policies which are used to make such redemptions or repurchases) and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, provided further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority cancellation of Indebtedness owing to the disinterested Company from members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business management of the Company or any of its Restricted Subsidiaries in connection with such a Subsidiary repurchase of Capital Stock of the Parent will not be deemed to constitute a Restricted Payment under this Indenture; (vi) the making of distributions, loans or advances to the Parent in an amount not to exceed $1.5 million per annum in order to permit the Parent to pay required and ordinary operating expenses of the Parent (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses, but excluding any payments on or repurchases of the Seller Subordinated Note or the Seller Preferred Equity); (vii) distributions to the Parent to fund the required tax obligations of the Parent or its members related to income generated by the Company and its Restricted Subsidiaries and taxable to such jurisdiction members, including the tax distributions contemplated by Article IV of the LLC Agreement as in effect on the date of this Indenture; (viii) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (ix) distributions to the Parent to fund the Transactions; (x) distributions to the Parent to purchase or redeem the Seller Subordinated Note and the Seller Preferred Equity pursuant to change of control provisions contained in the governing instrument relating thereto; provided, however, that (x) no offer or purchase obligation may be triggered in respect of such Seller Subordinated Note or Seller Preferred Equity unless a form corresponding obligation also arises with respect to the Notes and (y) in any event, no repurchase or redemption of any such Seller Subordinated Note or Seller Preferred Equity may be consummated unless and until the Issuers shall have satisfied all repurchase obligations with respect to any required purchase offer made with respect to the Notes; provided, however, that is customary to address foreign investment regulation such purchases or practice redemption of the Seller Subordinated Note or the Seller Preferred Equity shall be included in such jurisdictionthe calculation of the amount of Restricted Payments and provided that no Default or Event of Default shall have occurred and be continuing as a consequence thereof; and (xi) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at 5.0 million since the date of this Indenture. In addition, any one time;
(i) so long as no Default has occurred and dividend which is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries declared but not paid shall not be included in the ordinary course calculation of business for bona fide business purposes not in excess of €1,000,000 at Restricted Payments under clause (c), and any one time outstanding divided which is declared and paid shall be included only once in the aggregate;
(j) other calculation of Restricted Payments not to exceed $15,000,000 in the aggregate; and
under clause (k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Statusc). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of Managers of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an Independent Financial Advisor if such fair market value exceeds $15.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.7 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The Board of Managers may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of an Unrestricted Subsidiary by the Board of Managers shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Managers of the Company giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the Indenture governing the designation of Unrestricted Subsidiaries and was permitted by this Section 4.7. If, at any time, any Unrestricted Subsidiary fails to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under Section 4.9 hereof, the Company shall be in default of such covenant). The Board of Managers of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.9 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, (ii) such Subsidiary shall execute a Note Guarantee and deliver an Opinion of Counsel in accordance with the terms of this Indenture and (iii) no Default or Event of Default would be in existence following such designation.
Appears in 2 contracts
Sources: Indenture (Alliance Laundry Holdings LLC), Indenture (Alliance Laundry Holdings LLC)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) (other than dividends or distributions payable in Equity Interests of the Company (other than Disqualified Stock) or dividends or distributions to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company (other than any such Equity Interests owned by the Company Company, a Wholly Owned Restricted Subsidiary or any of its Restricted SubsidiariesGuarantor); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Note Guarantees, as the case may be, except payments of interest or a payment of interest or principal at Stated MaturityMaturity (other than Indebtedness permitted under clause (vi) of the second paragraph of Section 4.09 hereof); or (iiiiv) make any Restricted Investment Investment, (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test or the Consolidated Indebtedness to Consolidated Tangible Net Worth ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture plus all Restricted Payments made since February 20, 2001 until the date of this Indenture that constituted Restricted Payments under the terms of the indentures relating to the Existing Notes (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv), (v), (vii), (ix), (x), (xi) and (gxii) of the next succeeding paragraphparagraph (or, with respect to Restricted Payments made since February 20, 2001 and prior to the date of this Indenture, Restricted Payments (as defined in the Existing Indenture) permitted by clauses (ii), (iii), (iv), (v), (vii), (viii), (x), (xii), (xiii) and (yxiv) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account Section 4.07 of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisExisting Indenture)), is less than the sum (sum, without duplication) of the following: , of
(Ai) 50% of the cumulative Consolidated Net Income After Grossed Up Preferred Stock Dividends of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date December 31, 2000 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred Fair Market Value as determined by an independent third party appraiser, accounting firm or conveyed to valuation firm not affiliated with the Company (as valued at the time of transfer real property or conveyance to the Company, and as determined securities constituting a controlling interest in the manner contemplated by the definition of the term “fair market value”), in each case any Person received by the Company since the Issue Date February 20, 2001 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than any Disqualified Stock); provided , plus
(iii) to the extent that any Restricted Investment, in whole or in part, is sold or otherwise liquidated or repaid, redeemed or repurchased (or was sold or otherwise liquidated or repaid, redeemed, or repurchased since February 20, 2001 to the amount date of any this Indenture), the sum of (A) 100% of such net cash proceeds and the Fair Market Value of other assets that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause do not otherwise constitute a Restricted Investment (c)(B) net of the preceding paragraph;
cost of disposition or sale, if any, and tax liabilities arising from such transaction) up to the aggregate amount invested in such Restricted Investment outstanding at such time plus (cB) 50% of such cash proceeds and the defeasanceFair Market Value of other assets that do not otherwise constitute a Restricted Investment in excess of the aggregate amount invested in such Restricted Investment, redemptionin each case, purchase, retirement or other acquisition of subordinated Indebtedness to the extent not otherwise included in Consolidated Net Income of the Company for such period, plus
(iv) 50% of the amount received from any cash dividends, cash distributions, cash interest or other cash payments received by the Company or a Guarantor since February 20, 2001 from any Guarantor with Restricted Investment, to the net extent that such dividends or cash proceeds from an incurrence of, distributions were not otherwise included in Consolidated Net Income of the Company for such period or in exchange forclause (iii) above and excluding any such payments to pay obligations and expenses of Restricted Investments such as income taxes which were not paid prior to February 20, Permitted Refinancing Indebtedness;2001, plus
(dv) to the payment of extent that any dividend or distribution by a Restricted Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary after the date of this Indenture (or was redesignated as a Restricted Subsidiary since February 20, 2001 and prior to the Company or any date of its Restricted Subsidiaries;this Indenture), the Fair Market Value of the Company's Investment in such Unrestricted Subsidiary as of the date of such redesignation, plus
(evi) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion 100% of the exercise price reduction or release since February 20, 2001 of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests Indebtedness under Guarantees of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directorswhich are Restricted Investments, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) reduction or securities proposed release is not due to be transferred or issued by the Company or any payment under such Restricted SubsidiaryGuarantee, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.plus
Appears in 2 contracts
Sources: Indenture (Wci Communities Inc), Indenture (Communities Home Builders Inc)
Restricted Payments. The Company Issuer shall notnot make, and shall not permit any of its Restricted Subsidiaries toother Note Party to make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, Payment if at the time of of, and after giving effect to to, such proposed Restricted Payment:,
(a) no a Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;continuing, or
(b) Issuer could not Incur at least $1.00 of additional Debt pursuant to Section 6.8(a)(i), or
(c) the Company wouldFixed Charge Coverage Ratio would be less than or equal to 3.00 to 1.00, or
(d) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made since the date hereof (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value at the time of such Restricted Payment and after giving pro forma effect thereto Payment) would exceed an amount equal to the sum of:
(i) 10% of the aggregate amount of Consolidated Net Income accrued during the period (treated as if such Restricted Payment had been made at one accounting period) from the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant first Fiscal Quarter beginning after the date hereof to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) end of the most recent Fiscal Quarter ending prior to the date of such Restricted Payment, together with Payment (x) or if the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net IncomeIncome for such period shall be a deficit, minus 100% of such deficit), plus
(fii) and (g) 100% of the next succeeding paragraph)Capital Stock Sale Proceeds, and plus
(yiii) the sum of:
(A) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s net cash proceeds received by Issuer or any Subsidiary from the issuance or sale after the date hereof of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger convertible or consolidation involving the Company) exchangeable Debt that has been converted into or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests exchanged for Capital Stock (other than Disqualified Stock) of the CompanyIssuer, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus and
(B) 100% of the aggregate amount by which Debt (other than Subordinated Debt) of (1) Issuer or any Subsidiary is reduced on Issuer’s consolidated balance sheet on or after the net cash proceeds and (2) date hereof upon the fair market value conversion or exchange of Strategic Assets transferred any Debt issued or conveyed sold on or prior to the Company (as valued at the time of transfer date hereof that is convertible or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company exchangeable for Capital Stock (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted intoIssuer, or exchanged or redeemed forexcluding, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designationclause (A) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.above:
Appears in 2 contracts
Sources: Note Purchase Agreement (Morgan Stanley), Note Purchase Agreement (Full Alliance International LTD)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, Payment if at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of a Default shall have occurred and be continuing or would shall occur as a consequence thereof;
(bii) the Company would, cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception at the time of making such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been was made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andor
(ciii) the amount of such Restricted Payment, together with (x) when added to the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding other than Restricted Payments permitted by clauses made pursuant to clause (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeiii)(B), (fiv), (v) and or (gvi) of the next succeeding paragraphSection 4.07(b) below), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than exceeds the sum (the "Restricted Payments Basket") of (without duplication) of the following: ):
(A) 50% of the cumulative Consolidated Net Income of the Company Available For Common Stock for the period (taken as one accounting period) from commencing on the first day of the first full fiscal quarter following commencing after the Issue Date to and including the end last day of the Company’s most recently ended fiscal quarter ended immediately prior to the date of such calculation for which internal consolidated financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is Available For Common Stock shall be a deficit, less minus 100% of such aggregate deficit), plus plus
(B) 100% of the aggregate net cash proceeds received by the Company either (x) as contributions to the common equity of the Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than any such proceeds which are used to redeem Notes in accordance with Section 3.07 hereof, plus
(C) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) into Qualified Equity Interests (less the amount of any cash, or the Fair Market Value of assets, distributed by the Company or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment in cash of or cash return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Investment and (2) the amount of such Investment that was treated as a Restricted Investment (Payment, in either case, less the cost of dispositionthe disposition of such Investment and net of taxes, if anyplus
(E) plus (D) if any upon a Redesignation of an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Restricted Subsidiaries Company's proportionate interest in such Subsidiary as of the date of redesignation immediately following such Redesignation, and (2) the aggregate amount of the Company's Investments in such Investments. Subsidiary to the extent such Investments previously reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions will not prohibit any of the following:
prohibit: (ai) the payment by the Company or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof thereof, if at said on the date of declaration such the payment would have complied with the provisions of this Indenture;
Agreement; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value redemption of any Equity Interests of the Company or any Restricted Subsidiary in exchange for, or out of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees proceeds of the Company substantially concurrent issuance and its Restricted Subsidiaries not in excess sale of, Qualified Equity Interests; (iii) the redemption of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests Subordinated Indebtedness of the Company or any Restricted Subsidiary (A) in exchange for, or out of the Company held by any member proceeds of the Company’s substantially concurrent issuance and sale of Qualified Equity Interests or (B) in exchange for, or any out of its Restricted Subsidiaries’the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.09 hereof and other terms of this Agreement; (iv) management repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (v) the issuance or grant of shares, equity interests, options or warrants, stock appreciation rights or units, or other similar payments issued or granted pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are employee incentive plans approved by the Board of Directors, including a majority of the disinterested members Independent Directors, of the Board of Directors;
Company; (hvi) loans or advances in the ordinary course of business to Affiliates or Persons with which payment by the Company or a Subsidiary may have contractual arrangements in any jurisdiction to of dividends on its Capital Stock accruing after the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdictionIssue Date, in an aggregate amount not to exceed $7,500,000 outstanding at 13 million in any one time;
fiscal year; (ivii) the payment by the Company of dividends on its Capital Stock accrued for periods prior to the Issue Date, so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(jA) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such dividends in arrears shall not exceed (1) $19.6 million paid in the aggregate after the Issue Date or (2) the ECF Carry Forward Amount, if any, then in existence; provided, however, that in the case of any Restricted Payments Payment pursuant to clause (i), (iii), (vi) or (vii) above, no Default shall have occurred and be reduced by the lesser of (a) an amount equal continuing or occur as a consequence thereof. Notwithstanding anything to the fair market value contrary in the Indenture, on and after the Issue Date, the Company will not, and the Company will not permit any Subsidiary to, in one or a series of related transactions, directly or indirectly, (1) make any Investment in SAC Holding or a Person in which one or more Designated Persons beneficially own in the aggregate more than 1% of the Equity Interests of such Person, other than Exempted Designated Person Transactions (provided that this clause (1) shall not prevent Investments previously made by the Company and in any of its Restricted Subsidiaries or by any of its Subsidiaries in such Unrestricted Subsidiary at any of the time it becomes a Restricted Subsidiary and (b) other Subsidiaries of the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing Company in accordance with the Trustee a Board Resolution giving effect to such action and evidencing provisions of the valuation Indenture), or (2) forgive or waive the repayment or retirement or amend the terms of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture existence on, or after (in the case of a designation) and an Exempted Designated Person Transaction), the Issue Date in SAC Holding or any such Person made by the Company or any Subsidiary that is required to be repaid or retired by the terms of such Investment as in effect on, or after (in the case of any Exempted Designated Person Transaction), the Issue Date (other than in accordance with this Section 4.07the terms thereof as in effect on the date the Investment is made). The amount of all Restricted Payments (other than cash) shall be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 2 contracts
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Equity Interests of the Company or any of its Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Equity Interests of the Company or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company or other Affiliate of the Company that is not a Subsidiary of the Company, (other than any such Equity Interests owned by the Company or any Wholly Owned Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; Maturity or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofof this Indenture; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv) and (gvi) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date commencing July 1, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or of debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash or is sold for non-cash consideration and such non-cash consideration is subsequently sold for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will shall not prohibit any of the following:
prohibit: (ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of common Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateagreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $250,000 in any twelve-month periodperiod and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved (vi) payments by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a any Subsidiary may have contractual arrangements in any jurisdiction of the Company, directly or indirectly, to the extent such loans Company's stockholder to satisfy tax obligations in accordance with the Tax Allocation Agreement as in effect on the date hereof ("Tax Distributions"); and (vii) so long as no Default or advances are reasonably necessary to Event of Default shall have occurred and be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdictioncontinuing, other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of 5.0 million since the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07date hereof. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination Directors, whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required hereby.
Appears in 2 contracts
Sources: Indenture (Amcraft Building Products Co Inc), Indenture (Amcraft Building Products Co Inc)
Restricted Payments. The Company shall notDeclare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, and shall not permit or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any of its Restricted Subsidiaries toCapital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations (i) purchasecollectively, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Paymentexcept that:
(a) no Default any Subsidiary may make Restricted Payments to the Company or Event of Default shall have occurred and be continuing or would occur as a consequence thereofany other Subsidiary;
(b) the Company would, at and any of its Subsidiaries may make repurchases of its Capital Stock deemed to occur upon the time exercise of stock options or the vesting or settlement of other equity or equity-based awards if such Capital Stock represents all or part of the exercise price of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereofoptions or represents any income or employment tax withholding associated therewith; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided all times that the amount of any such net cash proceeds that are utilized for any such redemptionLeverage Adjustment Period is in effect, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value Event of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuingcontinuing at the time of declaration or would result therefrom, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of (i) the Company or any Restricted Subsidiary of may declare and pay its regularly scheduled cash dividends to the Company held by any member of the Company’s (or any holders of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or common stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at 225,000,000 for each fiscal year (less the amount of any one time;
investments made during such fiscal year in reliance on Section 6.04(o)(ii)) and (iii) so long as no Default has occurred and is continuingin addition to the foregoing, advances constituting Investment or loans to directors, officers and employees of the Company and any of its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other may make further Restricted Payments at all other times in an aggregate amount not to exceed $15,000,000 in the aggregate25,000,000; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.or
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Restricted Payments. The Company shall Borrower will not, and shall not nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except (ia) purchaseto make dividends payable solely in the same class of capital stock of such Person, redeem (b) to make dividends or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment distributions payable to the Notes Borrower (directly or indirectly through Subsidiaries) and ratably to minority shareholders or to make dividends or other distributions payable to a Subsidiary by another Subsidiary, (c) the Subsidiary GuaranteesSpecified Share Repurchase; provided that both prior, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to to, such Restricted Payment:
Specified Share Repurchase (ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Companycontinuing, (ii) dividends the Consolidated Leverage Ratio shall be less than or distributions payable equal to 2.0 to 1.0 (to be calculated to give pro forma effect to any repayments of Funded Indebtedness occurring on or prior to the Company or any relevant date of its Restricted Subsidiaries or determination) and (iii) if the Restricted Subsidiary making such dividend is Borrower shall have unutilized Commitments under this Credit Agreement in an amount not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or$250,000,000, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2d) the fair market value of Strategic Assets transferred other Restricted Payments if no Default has occurred and is continuing or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or would result from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock)action; provided that the amount of during any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or period in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by which a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default Ratings Downgrade has occurred and is continuing, the repurchase or other acquisition for value aggregate amount of any Equity Interests of the Company or any all such Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management Payments pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests this clause (d) shall not exceed €1,000,000 $75,000,000 for any consecutive four quarter period, beginning with the first fiscal quarter following such Ratings Downgrade; it being understood however that this proviso does not in any twelve-month period; providedway limit (i) Restricted Payments permitted by clauses (a), further(b) and (c) hereof, that such agreement or such repurchase(ii) other Restricted Payments, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, are in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes sum of the first paragraph proceeds received by the Borrower from the exercise of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant stock options held by employees, management or directors of the Borrower, plus any tax benefit to the terms of this paragraphBorrower related to such exercise or (iii) the redemption, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value retirement, or repurchase of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeconvertible Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Health Net Inc), Credit Agreement (Health Net Inc)
Restricted Payments. The Company shall not, and shall will not permit any of its Restricted Subsidiaries to, directly declare or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), Payment unless, at on the time date of declaration in the case of any proposed dividend and on the date of payment or distribution in the case of the making of any other Restricted Payment (the "Computation Date") and after giving effect thereto:
(i) the aggregate amount of all Restricted Payments made during the period commencing on January 1, 1998 and ending on and including the Computation Date (the "Computation Period") shall not exceed an amount equal to such Restricted Paymentthe sum of:
(a) 25% (or, in the case of a deficit, minus 100%) of consolidated net income of the Company and its Subsidiaries for the Computation Period, plus
(b) the net cash proceeds received by the Company from the issue or sale (other than to a Subsidiary) of shares of common or preferred stock (other than Redeemable Preferred Stock) of the Company (including shares of common stock issued upon conversion of Indebtedness to common stock, it being understood and agreed that in any such conversion, the Company shall be deemed to have received cash proceeds in an amount equal to the principal amount of Indebtedness converted to common stock), and
(ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) continuing; provided, that the Company would, at shall not in any fiscal quarter of the time Company declare any dividend to the extent that the amount of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Paymentdividend, together with the sum of (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (yi) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any theretofore declared in such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, fiscal quarter plus (ii) the aggregate amount of dividends or distributions payable to actually paid during the period (the "Measuring Period") of four consecutive fiscal quarters of the Company ended on (or any of its Restricted Subsidiaries or (iiimost recently ended prior to) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiarydeclaration, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50would exceed 25% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the consolidated net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees income of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
for the Measuring Period (g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in pay any twelve-month period; provideddividends it has not previously declared as permitted hereby), and provided further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by permitted if and for so long as the lesser claims-paying ability rating of (a) an amount equal to the fair market value any Insurance Subsidiary of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (Company, as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture Standard & Poors Ratings Group (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments if rated by said agency), falls below AA- (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeis withdrawn).
Appears in 1 contract
Sources: Credit Agreement (Enhance Financial Services Group Inc)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any distribution on its Equity Interests (other than dividends or distributions paid in the Company’s Qualified Equity Interests) held by Persons other than the Company or any of its Subsidiaries; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (the Company held by Persons other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iiiii) make any payment on or with respect to, or purchaserepay, redeem, repurchase, defease or otherwise acquire or retire for value, or make any Indebtedness that is subordinated in right payment on or with respect to, any Subordinated Debt of payment to the Notes Company or the any Subsidiary Guarantees, as the case may be, Guarantor except a payment of interest or principal at Stated Maturity; Maturity or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be continuing or would occur as a consequence thereofis continuing;
(b2) the Company wouldCollateral Coverage Ratio calculated on a Pro Forma Basis, at tested as of the time date of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodPayment, have been permitted would be no less than 2.00 to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof1.00; and
(c) such Restricted Payment, together with (x3) the aggregate amount of expended for all other Restricted Payments Payments, made by the Company and its Restricted Subsidiaries on or after the Issue Date would not, subject to paragraph (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraphc), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than exceed the sum of (without duplication) of the following: ):
(A) 50% of the cumulative aggregate amount of the Company’s Consolidated Net Income (or, if the Consolidated Net Income is a loss, minus 100% of the Company for amount of the period (loss) accrued on a cumulative basis during the period, taken as one accounting period) from , beginning with the first day of first fiscal quarter following commencing after the Issue Date to and ending on the end last day of the Company’s most recently ended completed fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus available; plus
(B) 100% of subject to paragraph (C), the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred marketable securities or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case other property received by the Company since (other than from a Subsidiary) after the Issue Date (i) from the issuance and sale of its Qualified Equity Interests, including by way of issuance of its Disqualified Equity Interests or Debt to the extent since converted into Qualified Equity Interests of the Company or (ii) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stockcontributions to its common equity made for the purpose of compliance with Sections 4.03 and 4.04 hereof), plus ; plus
(C) to the extent that $5 million. The amount expended in any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for Payment, if other than in cash, the cash return of capital with respect will be deemed to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to be the fair market value of the Investments previously made relevant non-cash assets, as determined by the Company and its Restricted Subsidiaries in good faith or, if such Subsidiary as fair market value may exceed $7.5 million, by the Board of Directors of the date Company.
(b) The provisions of redesignation and (2Section 4.09(a) the amount of such Investments. The foregoing provisions hereof will not prohibit any of the followingprohibit:
(a1) the payment of any dividend dividend, distribution or consummation of a redemption within 60 days after the date of declaration thereof if or the giving of the notice of redemption, as applicable, if, at said the date of declaration or notice, such payment would have complied comply with the provisions of this Indentureparagraph (a);
(b2) dividends or distributions by a Subsidiary payable, on a pro rata basis or on a basis more favorable than pro rata to the Company, to all holders of any class of Capital Stock of such Person;
(3) the repayment, redemption, repurchase, retirement, defeasance or other acquisition or retirement for value of any subordinated Indebtedness Subordinated Debt with the proceeds of, or in exchange for, Permitted Refinancing Debt;
(4) the purchase, redemption or other acquisition or retirement for value of Equity Interests (including the Convertible Preferred Stock) of the Company or any Guarantor direct or indirect parent in exchange for, or out of the proceeds of (i) an offering (occurring within 60 days of such purchase, redemption or other acquisition or retirement for value) of, Qualified Equity Interests of the Company or (ii) a contribution to the common equity capital of the Company;
(5) the making of any Restricted Payment in exchange for, or out of the proceeds of, (i) an issuance (occurring within 60 days of such Restricted Payment) of Qualified Equity Interests of the Company or (ii) a contribution to the common equity capital of the Company;
(6) the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Company or any of its Restricted Subsidiaries in exchange forheld by officers, directors or out of the net cash proceeds of the substantially concurrent sale employees or former officers, directors or employees (other than to a Restricted Subsidiary of the Company) of, other Equity Interests or their estates or beneficiaries under their estates of the Company (other than or such Restricted Subsidiary), upon death, disability, retirement, severance or termination of employment or pursuant to any Disqualified Stock)agreement under which the Equity Interests were issued; provided that the aggregate cash consideration paid therefor in any fiscal year, commencing with the fiscal year during which the Issue Date occurred, does not exceed an aggregate amount equal to the sum of (x) $5.0 million and (y) the amount of any such net cash proceeds Restricted Payments permitted but not made pursuant to this clause (6) in the prior fiscal year commencing with the fiscal year during which the Issue Date occurred; provided that are utilized amounts permitted but not made shall not be counted for purposes of this clause (y) for any such redemption, purchase, retirement, defeasance or fiscal year other acquisition shall be excluded from clause (c)(B) of than the immediately preceding paragraphfiscal year;
(c7) the defeasance, redemption, purchase, retirement or other acquisition repurchase of subordinated Indebtedness any Subordinated Debt at a purchase price not greater than (x) 101% of the principal amount thereof in the event of a change of control pursuant to a provision no more favorable to the holders thereof than Section 4.16 hereof or (y) 100% of the principal amount thereof in the event of an Asset Sale pursuant to a provision no more favorable to the holders thereof than Section 4.12 hereof; provided that, in each case, prior to the repurchase the Company or any Guarantor has made an Offer to Purchase and repurchased all Notes issued under this Indenture that were validly tendered for payment in connection with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtednessoffer to purchase;
(d) the payment of any dividend or distribution by a 8) Restricted Subsidiary of the Company Payments not otherwise permitted hereby in an aggregate amount not to the Company or any of its Restricted Subsidiariesexceed $1.0 million;
(ea) repurchases of Equity Interests deemed to occur upon the exercise of stock options, options or warrants if such the Equity Interests represent all or a portion of the exercise price thereof (or related withholding taxes) and (b) Restricted Payments by the Company or any Restricted Subsidiary to allow the payment of such stock options;
(f) so long as no Default has occurred and is continuing, cash in lieu of the repurchase issuance of fractional shares upon the exercise of options or other acquisition for value warrants or upon the conversion or exchange of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation in an aggregate amount under this clause (as a free allocation or otherwiseb) not to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of exceed $2,500,000 in any twelve-month period1.0 million;
(g10) so long as no Default has occurred and is continuing, the repurchase, redemption payment of dividends or other acquisition or retirement for value of any distributions on Disqualified Equity Interests of the Company or any Restricted Subsidiary Guarantor and payment of any redemption price or liquidation value of any Disqualified Equity Interest when due in accordance with its terms, in each case, to the extent that such Disqualified Equity Interest was permitted to be Incurred in accordance with the provisions of this Indenture;
(11) the payment of dividends on Qualified Equity Interests of up to 8.0% per annum of the Company held by any member greater of the Company’s gross proceeds received by the Company from any offering or sale of such Qualified Equity Interests after the Issue Date or the accreted value of such Equity Interests (or any provided that the aggregate amount of its Restricted Subsidiaries’dividends paid on such Qualified Equity Interests shall not exceed the proceeds therefrom received by the Company after the Issue Date); and
(12) management dividends made by the Company in accordance with the Convertible Preferred Stock Documents in effect on the Issue Date; provided that dividends payable in cash pursuant to any management equity subscription agreement or stock option agreement in effect this clause (12) may only be paid with respect to Convertible Preferred Stock outstanding as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that if such agreement Convertible Preferred Stock Documents are amended or supplemented any such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
dividend shall be permitted pursuant to this clause (h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i12) so long as any such amendments or supplements does not increase such dividends payable pursuant to the Convertible Preferred Stock Documents; provided that, in the case of clauses (6), (7), (10), (11) and (12), no Default has occurred and is continuing, advances constituting Investment continuing or loans to directors, officers and employees would occur as a result thereof.
(c) Proceeds of the Company issuance of Qualified Equity Interests will be included under clause (3) of paragraph (a) only to the extent they are not applied as described in clause (4) or (5) of paragraph (b). Restricted Payments permitted pursuant to clauses (2) through (9) and its Restricted Subsidiaries (11) of paragraph (b) will not be included in making the ordinary course calculations under clause (3) of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;paragraph (a).
(jd) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationdetermining compliance with this covenant, all outstanding Investments by in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (12) above, or is entitled to be incurred pursuant to paragraph (a) of this covenant, the Company and its Restricted Subsidiaries in the Subsidiary so designated shall will be deemed entitled to be Restricted Payments divide, classify or re-classify (based on circumstances existing at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if re-classification) such Restricted Payments would be permitted at such time Payment (or portion thereof) in any manner that complies with this covenant and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to Payment will be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary treated as having been made pursuant to only such clause or clauses or the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of paragraph (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteecovenant.
Appears in 1 contract
Sources: Indenture (HC2 Holdings, Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiid) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (iiid) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Adjusted Consolidated Interest Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) date of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis)this Indenture, is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date commencing April 1, 1998 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case Net Cash Proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash, Cash Equivalents, the cash return sum of capital with respect to (x) the initial amount of such Restricted Investment and (less y) 50% of the cost aggregate Net Proceeds received by the Company or any Restricted Subsidiary of dispositionthe Company in excess of the initial amount of such Restricted Investment, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments$25.0 million. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided PROVIDED that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Biii) (B) of the preceding paragraph;
; (c) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds Net Cash Proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
Equity Interests on a pro rata basis; (e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has or Event of Default shall have occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s ('s or any of its Restricted Subsidiaries’) ' management pursuant to any management equity subscription agreement upon the death, disability or stock option agreement in effect as termination of the Issue Dateemployment of such member of management; provided PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $750,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances calendar year and $3.0 million in the ordinary course of business to Affiliates or Persons with which aggregate; (f) the payment by the Company or a Subsidiary may have contractual arrangements in any jurisdiction of its Restricted Subsidiaries of management fees to the extent such loans WPN or advances are reasonably necessary to be made in connection with conducting the business any Affiliate of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount WPN not to exceed $7,500,000 outstanding at 5.5 million in any one time;
(i) so long as no Default has occurred and is continuingcalendar year, advances constituting Investment or loans in exchange for services provided to directors, officers and employees of the Company and its Restricted Subsidiaries by WPN or any Affiliate of WPN pursuant to any management agreement between the Company and/or any of its Restricted Subsidiaries and WPN and/or any of its Affiliates; (g) payments permitted under the WHX Agreements; (h) the payment of cash dividends on the Company's convertible preferred stock outstanding, and at the dividend rate in effect, on the date of this Indenture, PROVIDED that in the ordinary course case of business for bona fide business purposes not in excess any such dividend payments made subsequent to January 1, 1999, the Company may only make such dividend payments if, at the time of €1,000,000 at any one time outstanding in such dividend payment and after giving pro forma effect thereto, the aggregate;
Company's Adjusted Consolidated Leverage Ratio would be less than 6.0 to 1.0; and (ji) the direct or indirect purchase or other Restricted Payments not acquisition of Equity Interests of H&H pursuant to exceed $15,000,000 in the aggregate; and
(k) Investments or in connection with the Permitted Closing StepsTender Offer and the Merger. In determining the amount of Restricted Payments permissible under clause (iii) of the first paragraph of this covenant, amounts expended pursuant to clauses (a), (e) and (h) (only with respect to dividend payments made subsequent to January 1, 1999) of the immediately preceding paragraph shall be included as Restricted Payments for purposes of such clause (iii). The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, . All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation shall only will be permitted only if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an officer's certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
Sources: Indenture (WHX Corp)
Restricted Payments. (A) The Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, :
(i) declare or pay any dividend or make any other payment or distribution on account of the Issuer's or to the direct or indirect holders of the Issuer's Equity Interests or to the direct or indirect holders of the Issuer's Equity Interests in their capacity as stockholders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Issuer);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company Issuer or any direct or indirect parent of its Restricted Subsidiaries the Issuer (other than any such Equity Interests owned by the Company Issuer or any of its Restricted SubsidiariesSubsidiary); ;
(iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except a payment for scheduled payments of interest or principal at Stated Maturityprincipal; or or
(iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, :
(a) at the time of and after giving effect to such Restricted Payment:
(a) , no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof8.04(a); and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company Issuer and its the Restricted Subsidiaries on or after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis)Closing Time, is less than the sum (sum, without duplication, of
(i) the amount of the following: Issuer's (Ax) 50% of the cumulative Cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available Cash Flow determined at the time of such Restricted Payment less (or, if such Consolidated Net Income for such period is a deficit, less 100y) 150% of the cumulative Consolidated Interest Expense, determined for the period commencing on January 1, 2000 and ending on the last day of the last fiscal quarter preceding the date on which such deficit)Restricted Payment is to be made for which financial statements are available, plus plus
(Bii) 10080% of the aggregate Net Cash Proceeds and Fair Market Value of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case any other consideration received by the Company since Issuer or any Restricted Subsidiary on and after the Issue Date as a contribution to its common equity capital Closing Time from the issue or sale of Qualified Equity Interests of the Issuer or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities Indebtedness of the Company Issuer or a Restricted Subsidiary that have has been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities converted or exchanged Indebtedness sold to and held by a Restricted Subsidiary), plus the amount of Net Cash Proceeds and Fair Market Value of any other consideration received by the Issuer or any Restricted Subsidiary upon such conversion or exchange, plus
(iii) the aggregate amount equal to the net reduction in Restricted Investments in Unrestricted Subsidiaries on or after the Closing Time resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Restricted Investments or other transfers of assets to the Issuer or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Issuer or any Restricted Subsidiary upon the sale of such Restricted Investment to a Person other than the Issuer or any Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoIssuer, or exchanged or redeemed for(z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, Disqualified Stocknot to exceed in the case of any of the immediately preceding clauses (x), plus (Cy) or (z) the aggregate amount of Restricted Investments made by the Issuer or any Restricted Subsidiary in such Unrestricted Subsidiary on or after the Closing Time, plus
(iv) to the extent that any Restricted Investment that was made on or after the Issue Date Closing Time is sold for cash or otherwise liquidated or repaid for cash, the lesser of, to the extent paid to the Issuer or a Restricted Subsidiary, (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such Investments. Restricted Investment, minus
(v) 80% in the event of a Restricted Payment prior to the occurrence of an IPO Liquidity Event or 64% in the event of a Restricted Payment on or after the occurrence of an IPO Liquidity Event of the aggregate principal amount of any outstanding Indebtedness incurred and outstanding pursuant to Section 8.04(b)(ii).
(B) The foregoing provisions will shall not prohibit any of the following:prohibit
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said the date of declaration such payment would have complied with the provisions of this Indentureforegoing provisions;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Issuer in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the CompanyIssuer) of, other Qualified Equity Interests of the Company (other than any Disqualified Stock)Issuer; provided that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for for, and the Equity Interests issued or exchanged for, any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) of the preceding paragraphSection 8.02(A) and clause (v) of this Section 8.02(B);
(ciii) the defeasance, redemption, purchaseretirement, retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence ofNet Cash Proceeds from, or issued in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(d) ; pro- vided that the payment amount of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or Net Cash Proceeds that are utilized for any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock optionssuch defeasance, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuingredemption, the retirement, repurchase or other acquisition for value shall be excluded from clause (c) of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month periodSection 8.02(A);
(giv) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company Issuer held by any employee or former employee (or his or her spouse or other immediate family, decedent, estate, trust for the benefit of any member of the Company’s (his or any of its Restricted Subsidiaries’her immediate family or other legal representative) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue DateIssuer or a Restricted Subsidiary upon such employee's death, disability or termination for cause or in connection with the Issuer's relocation to the San Francisco Data Center; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $2.5 million in any twelve-month periodfiscal year; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directorsamounts unutilized in any fiscal year may be carried forward for up to two additional years;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(iv) so long as no Default has occurred and is continuing, advances constituting Restricted Investments not to exceed an amount (measured on the date each such Restricted Investment or loans was made), when taken together with all other Restricted Investments made pursuant to directorsthis clause (v) that are at the time outstanding, officers the sum of (x) $5.0 million, plus (y) the amount then available for the making of Restricted Payments pursuant to Section 8.02(A)(c) without giving effect to subclause (i) thereof and employees of treating, for this purpose, the Company 80% in subclause (ii) thereof as 100%, the 100% in subclause (v) as 80% and its Restricted Subsidiaries the 80% in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregatesubclause (v) as 64%;
(jvi) other Restricted Payments Investments in Persons engaged in a Permitted Business or that will make investments in any such Persons not to exceed $15,000,000 5.0 million outstanding at any time;
(vii) the repurchase of Equity Interests of the Issuer in the aggregateaccordance with rights of appraisal under applicable law; and
(kviii) Investments payments of cash in connection with lieu of fractional shares upon the Permitted Closing Stepsexercise of warrants, options and other rights to purchase Capital Stock of the Issuer. Each Restricted Payment permitted pursuant to clauses (i), (iv), (v) and (vi) above shall be included, and each Restricted Payment permitted pursuant to clauses (ii) and (iii) above shall be excluded (except as specifically set forth in each such clause), for all purposes when performing the calculation set forth in clause (c) of Section 8.02(A).
(C) The Board of Directors may not designate any Restricted Subsidiary of the Issuer (other than a newly created Subsidiary in which no Investment has previously been made (other than any de minimis amount not to be exceed $25,000 required to capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary if (a "Designation") un- -----------
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation Designation and (ii) the Issuer would not cause be prohibited under this Agreement from making a Default Restricted Investment at the time of such Designation (except at any time during which assuming the Company maintains effectiveness of such Designation for purposes of this Section 8.02) in an amount equal to the Fair Market Value of the net Investment Grade Statusof the Issuer and all Restricted Subsidiaries in such Subsidiary on such date (the "Designation Amount"). For purposes ------------------
(D) In the event of making any such designationDesignation, all outstanding Investments owned by the Company Issuer and its the Restricted Subsidiaries in the Subsidiary so designated shall will be deemed to be a Restricted Payments at Investment made as of the time of such designation, Designation in the Designation Amount and will reduce the amount available for Restricted Payments under Section 8.02(A)(iv)(c) or (B) (v) by the Designation Amount in accordance with the terms of such provisions. All such outstanding Investments will be deemed to constitute Restricted Payments in an amount equal to the fair market value Fair Market Value of such Investments at the time of such designationDesignation. Such designation shall only A Designation may be permitted if such Restricted Payments would be permitted at such time revoked and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any an Unrestricted Subsidiary to may thus be redesignated as a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes (a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee."
Appears in 1 contract
Sources: Purchase Agreement (Intira Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.plus
Appears in 1 contract
Sources: Indenture
Restricted Payments. The Company shall notDeclare or pay, and shall not or permit any of its Restricted Subsidiaries toto declare or pay, directly or indirectly, (i) purchaseany dividend, redeem payment or otherwise acquire other distribution of assets, properties, cash, rights, obligations or retire for value (including, without limitation, in connection with securities on account of any merger or consolidation involving the Company) share of any Equity Interests class of capital stock of the Company Borrower or any of its Restricted Subsidiaries (other than any such Equity Interests owned by (1) stock splits and dividends payable solely in nonconvertible equity securities of the Company Borrower and (2) distributions made to the Borrower or any of its a Restricted SubsidiariesSubsidiary); (ii) make any payment on or with respect to, or purchase, redeem, defease retire, or otherwise acquire for value, or retire permit any of its Restricted Subsidiaries to purchase, redeem, retire, or otherwise acquire for value, any Indebtedness that is subordinated in right shares of payment any class of capital stock of the Borrower or any of its Restricted Subsidiaries or any warrants, rights, or options to acquire any such shares, now or hereafter outstanding, or make, or permit any of its Restricted Subsidiaries to make, any distribution of assets to any of its shareholders (other than distributions to the Notes Borrower or the Subsidiary Guaranteesa Restricted Subsidiary) (any such dividend, payment, distribution, purchase, redemption, retirement or acquisition being hereinafter referred to as the case may bea "RESTRICTED PAYMENT"), except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses unless (i) through no Default or Event of Default has occurred and is continuing or would occur as a result of such Restricted Payment, and (iiiii) above being collectively referred after giving effect thereto, the aggregate amount of all such Restricted Payments made since September 30, 1993 shall not have exceeded the sum of (A) $120,000,000, (B) 100% of Consolidated Net Income (as defined in the Indenture in effect on the date hereof) accrued during the period (treated as one accounting period) from September 30, 1993 to as “the end of the most recent fiscal quarter of the Borrower ending at least 45 days prior to the date of such Restricted Payments”Payment (or, in case such amount shall be a deficit, minus 100% of such deficit), unlessand (C) the aggregate Net Proceeds (as defined in the Indenture in effect on the date hereof) received by the Borrower from any issuance or sale of, or contribution with respect to, its capital stock subsequent to September 30, 1993; provided, however, that the foregoing shall not prohibit (1) any purchase or redemption of capital stock of the Borrower made by exchange for, or out of the proceeds of the substantially concurrent sale of, capital stock of the Borrower (other than Redeemable Stock or Exchangeable Stock (as such terms are defined in the Indenture in effect on the date hereof)), provided that such purchase or redemption shall be excluded from the calculation of the amount of Restricted Payments permitted by this subsection (e); (2) dividends or other distributions paid in respect of any class of the Borrower's capital stock issued in respect of the acquisition of any business or assets by the Borrower or a Restricted Subsidiary where the dividends or other distributions with respect to such capital stock are payable solely from the net earnings of such business or assets; (3) dividends paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this subsection (e), provided that at the time of and after giving effect to payment of such Restricted Payment:
(a) dividend, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.result
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or a payment of principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date hereof (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (gii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date hereof to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date hereof of (A) Equity Interests of the Company (other than Disqualified Stock), (B) any Restricted Subsidiaries or from the issuance or sale of (C) Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such into Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) 100% of the aggregate amount of capital contributions to the extent that Company's common equity or repayments from Holdings of amounts in respect of the Intercompany Note, plus (iv) 100% of the net proceeds received by the Company or any of its Restricted Subsidiaries from (A) the sale or other disposition since the date hereof of any Restricted Investment that was made after or (B) dividends on or the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return sale of capital with respect to such Restricted Investment (less the cost stock of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such InvestmentsSubsidiaries. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
hereof; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock)) or from the net proceeds of a capital contribution by Holdings to the Company or repayments from Holdings of amounts in respect of the Intercompany Note; provided PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Management Equity Interests or the repurchase, redemption or other acquisition or retirement for value of Indebtedness incurred pursuant to clause (xi) of the Company second paragraph of Section 4.09 (including, in each case, any dividend or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant distribution to any management equity subscription agreement or stock option agreement in effect as of the Issue DateHoldings used for such purpose); provided PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Management Equity Interests shall not exceed €1,000,000 the sum of (a) $2.0 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances period but not more than $10.0 millions in the ordinary course aggregate plus (b) cash proceeds from the sale of business Management Equity Interests to Affiliates management, directors or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business consultants of the Company (or any of its Restricted Subsidiaries); (v) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a Subsidiary in portion of the exercise price of such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount options; (vi) other Restricted Investments not to exceed $7,500,000 outstanding at any one time;
10.0 million; (ivii) so long as no Default has occurred and is continuing, advances constituting Investment Restricted Investments made or loans to directors, officers and employees of received by the Company and its Restricted Subsidiaries as non-cash consideration from Asset Sales to the extent permitted by Section 4.10 or received by a person in exchange for trade or other claims against such person in connection with a financial reorganization of restructuring or such person; (viii) the ordinary course payment of business for bona fide business purposes not dividends or distributions to Holdings which are used solely to repay any Indebtedness (including any accrued interest thereon) due from Holdings to the Company pursuant to the Intercompany Note or any cancellation or forgiving of such Indebtedness (including any accrued interest thereon); (ix) any loans, advances, distributions or payments between the Company and its Restricted Subsidiaries; (x) the payment of dividends or distributions to Holdings in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments an amount not to exceed $15,000,000 1.0 million per calendar year to allow Holdings to pay reasonable legal, accounting, investment banking, 38 financial advisory, outside director or other professional and administrative fees and expenses incurred by it related to its business; (xi) payments pursuant to the Tax Sharing Agreement; (xii) payments to DLJSC, or dividends to Holdings to allow Holdings to pay DLJSC, in respect of a retainer for advisory services in an amount not to exceed $250,000 per year; and (xiii) payments pursuant to the aggregate; and
indemnity provisions of the Merger Agreement (k) Investments in connection with the Permitted Closing Stepsor any dividend, distribution or loan to Holdings used for such purpose). The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, in an designation and will reduce the amount equal to available for Restricted Payments under the fair market value first paragraph of such Investments at the time of such designationthis covenant. Such designation shall will only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination Directors whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by the covenant "Restricted Payments" were computed.
Appears in 1 contract
Restricted Payments. (a) The Company shall not, and shall not permit any Restricted Subsidiary of its Restricted Subsidiaries QCII to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, Payment if at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of a Default shall have occurred and be continuing or would shall occur as a consequence thereof;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to QCII cannot incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in second sentence Section 4.09 hereof4.06(a); andor
(ciii) the amount of such Restricted Payment, together with (x) when added to the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Start Date (excluding other than Restricted Payments permitted by clauses made pursuant to clause (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (giii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than exceeds the sum (the "Restricted Payments Basket") of (without duplication) of the following: ):
(A) 50% of the cumulative Consolidated Net Income of the Company QCII for the period (taken as one accounting period) from commencing on the first day of the first full fiscal quarter following commencing after the Issue Start Date to and including the end last day of the Company’s most recently ended fiscal quarter ended immediately prior to the date of such calculation for which internal consolidated financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is shall be a deficit, less minus 100% of such aggregate deficit), plus plus
(B) 100% in the case of the aggregate disposition or repayment of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than return on any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was treated as a Restricted Payment made after the Issue Date is sold for cash or otherwise liquidated or repaid for cashDate, an amount (to the cash extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Investment (Payment, in either case, less the cost of dispositionthe disposition of such Investment and net of taxes, if anyplus
(C) plus (D) if any upon a Redesignation of an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1i) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Restricted Subsidiaries Company's direct or indirect interest in such Subsidiary as immediately following such Redesignation, and (ii) the aggregate amount of the date Company's Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The provisions of redesignation and (2Section 4.07(a) the amount of such Investments. The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said on the date of declaration such the payment would have complied with the provisions of this Indenture;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition payment of any subordinated Indebtedness of the Company or any Guarantor or any dividends on Disqualified Equity Interests permitted to be incurred under Section 4.06 and the other terms of this Indenture;
(iii) the Company or any redemption of its Restricted Subsidiaries Subordinated Indebtedness in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than incurrence within 180 days prior to a Restricted Subsidiary of the Company) such exchange of, other Equity Interests Subordinated Indebtedness permitted to be incurred under Section 4.06 and the other terms of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraphthis Indenture;
(civ) the defeasance, redemption, purchase, retirement payments made pursuant to and in accordance with stock or other acquisition benefit plans for management employed by QCII and its Subsidiaries so long as such plans are for the benefit of subordinated Indebtedness a broad range of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;management and other employees generally; and
(dv) the payment so long as QCII could incur $1.00 of any dividend or distribution by a Restricted Subsidiary of the Company Indebtedness pursuant to the Company second sentence of Section 4.06(a), QCII or any of its Restricted Subsidiaries;
Subsidiaries may make Restricted Payments in the amount of (ei) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion 100% of the exercise price aggregate net cash proceeds received as capital contributions by QCII or from the issuance of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Qualified Equity Interests of QCII on or after the Company or any Restricted Start Date and (ii) the aggregate amount by which Indebtedness of QCII has been converted into Qualified Equity Interests (other than by a Subsidiary of QCII) after the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Start Date; provided that the aggregate price paid for all such repurchasedthat, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the any Restricted Payment of the asset(spursuant to clause (ii), (iii) or securities proposed to (v) above, no Default shall have occurred and be transferred continuing or issued by the Company or such Restricted Subsidiary, occur as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteea consequence thereof.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through ), (e) andc), to the extent deducted in computing Consolidated Net Income(d), (f), (g) and (gh), but including Restricted Payments permitted by clauses (a) and (e) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date January 1, 2004 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) subject to clause (b) of the next succeeding paragraph, 100% of the aggregate of (1) the net cash proceeds proceeds, and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Companyany property other than cash, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or January 1, 2004 from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment plus (D) if in the event that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such InvestmentsInvestments plus (E) $20,000,000. The foregoing provisions will not prohibit any of the following:
: (a) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
; (c) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiaries;
the Company; (e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value Event of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member employee of the Company’s (Company or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; , provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $500,000 in any twelve-month periodcalendar year; provided, further, that such agreement (f) the acquisition of Equity Interests by the Company in connection with the exercise of stock options or such repurchase, redemption stock appreciation rights by way of cashless exercise or other in connection with the satisfaction of withholding tax obligations; (g) in connection with an acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in by any jurisdiction of its Restricted Subsidiaries, the return to the extent such loans Company or advances are reasonably necessary to be made in connection with conducting the business any of its Restricted Subsidiaries of Equity Interests of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims; and (h) the ordinary course purchase by the Company of fractional shares of Equity Interests arising out of stock dividends, splits or combinations or business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregatecombinations;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationdesignation (except to the extent they qualify as Permitted Investments), in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment (other than a Restricted Payment permitted by clause (b), (c), (d), (f), (g) or (h) of the second full paragraph of this Section 4.07), the Company shall deliver to the Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (iother than dividends or distributions payable solely in the Company's Equity Interests (other than Disqualified Stock) or to the Company);
(b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries Company's Equity Interests;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except (i) a payment of interest or principal at the Stated Maturity; Maturity thereof or (iiiii) Subordinated Indebtedness acquired in anticipation of satisfying a sinking fund obligation, principal installment or payment of principal upon final maturity of such Subordinated Indebtedness, in each case acquired within one year of the date of the sinking fund obligation, principal installment or payment of principal upon maturity; or
(d) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (ia) through (iiid) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f2) and (g3) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Ai) 50% of the cumulative Company's Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date April 1, 2002 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date hereof from the issue or sale of its Equity Interests (other than Disqualified Stock) or Equity Interests of any of the Company's parent entities (which proceeds are received as a contribution to its the Company's common or non-redeemable preferred equity capital capital) or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) convertible or from the issuance or sale of exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests or Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus plus
(Ciii) to the extent that any Restricted Investment that was made after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the initial amount of such InvestmentsRestricted Investment. The foregoing So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenturehereof;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness or of any of the Company or any Guarantor or any Company's Equity Interests by conversion into, or by an exchange for, shares of the Company Company's Equity Interests (other than Disqualified Stock), or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary any of the Company's Restricted Subsidiaries) of, other the Company's Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
(c3) the repurchase, retirement or redemption of any Subordinated Indebtedness with the proceeds from an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness, but only (x) if the Company has complied with Section 4.12 and (y) to the extent of the Excess Proceeds remaining after the offer made to Holders of the Notes pursuant to the Asset Sale;
(4) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;; and
(d5) the payment of any dividend or distribution by a other Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Payments in an aggregate amount since June 28, 2002 not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.0710.0 million. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this Section 4.10 will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination shall Company whose resolutions with respect thereto will be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.10 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (Gallipolis Care LLC)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, would at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, period have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; and4.09(i).
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii) and (giv) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.liquidated
Appears in 1 contract
Sources: Indenture (Newcor Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or any Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Notes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.of
Appears in 1 contract
Sources: Indenture (Sf Holdings Group Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii) and (giv) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) (ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.Equity
Appears in 1 contract
Restricted Payments. The Company Issuers shall not, and shall not permit any of its their respective Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of an Issuer's or any of their respective Restricted Subsidiary's Equity Interests (including, without limitation, any payment on such Equity Interests in connection with any merger or consolidation involving an Issuer) or to the direct or indirect holders of an Issuer's or any of their respective Restricted Subsidiary's Equity Interests in their capacity as such other than dividends or distributions payable in Qualified Equity Interests;
(i2) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company an Issuer or any direct or indirect parent of its Restricted Subsidiaries an Issuer;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment (i) payments of interest or principal at Stated Maturity; Maturity thereof, (ii) payments of interest or principal on or in respect of Indebtedness owed to and held by an Issuer or any Restricted Subsidiary and (iii) payments, purchases, redemptions, defeasances or other acquisitions or retirements for value in anticipation of satisfying a scheduled maturity, sinking fund or amortization or other installment obligation or mandatory redemption, in each case, due within one year of the Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iii4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b2) the Company Issuers would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company Issuers and its their respective Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (6), (7), (8), (9) and (g10) of the next succeeding paragraph), and (y) is not greater than the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (includingsum, without limitationduplication, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such of:
(other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (Aa) 50% of the cumulative combined Consolidated Net Income of the Company Issuers for the period (taken as one accounting period) from the first day beginning of first the fiscal quarter following in which the Issue Date date of this Indenture occurs to the end of the Company’s Issuers' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(Bb) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date an Issuer as a contribution to its common equity such Issuer's capital or received by an Issuer from the issue or sale since the date of Equity Interests of the Company this Indenture (other than Disqualified Stockto a Subsidiary of such Issuer) of Qualified Equity Interests or from the issuance or sale of Disqualified Stock or debt securities of the Company such Issuer that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such into Qualified Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus plus
(Cc) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cashcash or Cash Equivalents or becomes an interest in a Restricted Subsidiary of an Issuer, the cash lesser of (i) the return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (Dii) the initial amount of such Restricted Investment, plus
(d) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of such redesignated Unrestricted Subsidiary (as certified to the Investments previously made by the Company and its Restricted Subsidiaries Trustee in such Subsidiary an Officers' Certificate) as of the date of its redesignation and or (2ii) pays any cash dividends or cash distributions to an Issuer or any Restricted Subsidiary of an Issuer, 100% of any such cash dividends or cash distributions made after the amount date of such Investmentsthis Indenture. The foregoing preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said such date of declaration such payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company an Issuer or any Restricted Subsidiary of its Restricted Subsidiaries an Issuer in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Companysuch Issuer) of, other Qualified Equity Interests of the Company (other than any Disqualified Stock)Interests; provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B3)(b) of the preceding paragraph;
(c3) the defeasance, redemption, purchaserepurchase, retirement repayment or other acquisition of subordinated Indebtedness of the Company an Issuer or any Guarantor Restricted Subsidiaries of an Issuer with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend (or distribution in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company an Issuer to the Company or any holders of its Equity Interests on a pro rata basis, taking into account the relative preferences, if any, of the various classes of equity interests in such Restricted SubsidiariesSubsidiary;
(e5) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company an Issuer held by any current or former officer, director, consultant or employee of an Issuer or any Restricted Subsidiary of the Company held by any member of the Company’s an Issuer (or any permitted transferees, assigns, estates or heirs of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateforegoing); provided that provided, however, the aggregate price paid by the Issuers and their respective Restricted Subsidiaries shall not exceed $5.0 million in any calendar year (excluding for all purposes of calculating such amount the purchase price of Equity Interests repurchased, redeemed, acquired or retired with the proceeds from the repayment of loans by an Issuer or a Restricted Subsidiary of an Issuer made for the purpose of purchasing such Equity Interests), with unused amounts in any calendar year being carried over for one additional calendar year;
(6) the declaration and payment of dividends on Disqualified Stock in accordance with the certificate of designations therefor; provided that at the time of issuance of such Disqualified Stock, the Issuers would, after giving pro forma effect thereto as if such issuance had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof;
(7) repurchases of Equity Interests shall not exceed €1,000,000 deemed to occur upon the exercise of stock options to the extent that such Equity Interests represent a portion of the exercise price thereof;
(8) payments permitted under clauses (7), (8) and (9) of Section 4.11;
(9) payments made to purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of an Issuer or any Restricted Subsidiary of an Issuer or any subordinated Indebtedness of an Issuer or a Guarantor (other than Equity Interests or subordinated Indebtedness issued to or at any time held by an Affiliate of any such Person), in any twelve-month periodeach case, pursuant to provisions requiring such Person to offer to purchase, redeem, defease or otherwise acquire or retire for value such Equity Interests or subordinated Indebtedness upon the occurrence of a Change of Control or with the proceeds of Asset Sales as defined in the charter provisions, agreements or instruments governing such Equity Interests or subordinated Indebtedness; provided, furtherhowever, that such agreement a Change of Control Offer or such repurchaseAsset Sale Offer, redemption or other acquisition or retirement or as applicable, has been made and the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made Issuer has purchased all Notes validly tendered in connection with conducting the business that Change of the Company Control Offer or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Asset Sale Offer; and
(10) other Restricted Payments in an aggregate amount not up to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing20.0 million; provided that, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of clause (5), (6), (9) or (10), no Default or Event of Default shall have occurred and be continuing or would occur as a designation) and with this Section 4.07consequence of the making of the Restricted Payment contemplated thereby. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company such Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than the date of making any Restricted Payment, the Issuers shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The fair market value of any non-cash Restricted Payment shall be determined certified to the Trustee in the manner contemplated such Officers' Certificate. Such Officers' Certificate must be based upon an opinion or appraisal issued by the definition an accounting, appraisal or investment banking firm of the term “national standing if such fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteevalue exceeds $20.0 million.
Appears in 1 contract
Restricted Payments. The Company shall notNone of the Obligors will, and shall not nor will it cause or permit any of its Restricted Subsidiaries Subsidiary to:
(a) declare or pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any shares of its Capital Stock (including through the payment to any Person other than the Issuer or a Wholly Owned Restricted Subsidiary in connection with a transaction described in Section 6.06(a)(i)) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Restricted Subsidiary to purchase or acquire) any shares of any class of its Capital Stock or set aside any amount for any such purpose (any such payment, a "RESTRICTED PAYMENT"); PROVIDED that any Subsidiary of the Issuer may declare and make Restricted Payments to any Obligor; and
(b) issue any stock, membership or partnership or other Equity Interest to any Person unless (i) purchaseafter giving effect to such issuance, redeem or otherwise acquire or retire for value the Issuer shall be in compliance with Section 6.13 (includingdetermined on a pro forma basis, without limitationusing assumptions that the Issuer in good faith believes are fair, accurate and reasonable at the time, and in connection with any merger or consolidation involving which assumptions the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted SubsidiariesAdministrative Agent concurs); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) issuance no other Default or Event of Default shall have occurred and be continuing or would occur as continuing; and (iii) in the case of any such issuance by a consequence thereof;
(b) Restricted Subsidiary, the Company would, at percentage of the time issued and outstanding shares of Capital Stock of such Restricted Payment Subsidiary owned by the Issuer and its other Restricted Subsidiaries after giving pro forma effect thereto as if to such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted issuance shall be greater than or equal to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made percentage owned by the Company Issuer and its Restricted Subsidiaries after immediately prior to such issuance; PROVIDED that the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than foregoing shall not prohibit:
(i) dividends or distributions payable in Equity Interests the issuance by the Issuer of any additional Capital Stock (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Capital Stock of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Issuer in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the CompanyIssuer) of, other Equity Interests of Capital Stock of the Company Issuer (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;NOTE AND GUARANTEE AGREEMENT
(ciii) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests Capital Stock of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management Issuer pursuant to any management or equity subscription agreement or stock option agreement in effect as and the repurchase of Capital Stock of the Issue Date; provided that the aggregate price paid for all such repurchasedIssuer from employees, redeemed, acquired officers or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority directors of the disinterested members Issuer or their authorized representatives upon the death, disability or termination of the Board employment of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction officers, directors and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, employees in an aggregate amount not to exceed $7,500,000 outstanding at 5,000,000 during the term of this Agreement (or $1,500,000 through December 31, 2002) PLUS (x) the aggregate cash proceeds from any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans issuance during such calendar year of Capital Stock by the Issuer to directorsemployees, officers and employees or directors of the Company Issuer and its Restricted Subsidiaries and (y) the aggregate cash proceeds received by the Issuer or any Restricted Subsidiary from any payments on life insurance policies in which the ordinary course Issuer or any Restricted Subsidiary is the beneficiary with respect to any employees, officers or directors of business for bona fide business purposes not in excess the Issuer or any Restricted Subsidiary which proceeds are used to purchase Capital Stock of €1,000,000 at any one time outstanding in the aggregateIssuer held by such employees, officers or directors;
(jiv) pro rata dividends or other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments distributions made by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph Issuer to minority stockholders (or owners of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (equivalent interest in the case of a designationRestricted Subsidiary that is not a corporation);
(v) and with this Section 4.07. The amount the repurchase of all Restricted Payments (other than cash) shall be the fair market value on the date Capital Stock of the Restricted Payment Issuer deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the asset(sexercise price thereof; and
(vi) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value payment of any non-cash Restricted Payment shall be determined dividends in the manner contemplated by the definition respect of any class of Capital Stock of the term “fair market value,” and Issuer through the results issuance of additional shares of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeclass of Capital Stock.
Appears in 1 contract
Sources: Note and Guarantee Agreement (Metromedia Fiber Network Inc)
Restricted Payments. The Company shall notMake any payment or prepayment of principal of, and shall not permit any of its Restricted Subsidiaries premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness, declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (i) purchasecollectively, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unlessexcept that, at the time of and after giving effect to such Restricted Payment:
(a) so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would occur as a consequence thereofresult therefrom:
(a) any Subsidiary of any Group Member may make Restricted Payments to any Loan Party;
(b) each Loan Party may, purchase common stock or common stock options from present or former officers or employees of any Group Member upon the Company woulddeath, at the time disability or termination of employment of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereofofficer or employee; and
(c) such Restricted Payment, together with (x) provided that the aggregate amount of all other Restricted Payments payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses under this subsection (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) shall not exceed $1,000,000 during any fiscal year of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraphHoldings;
(c) the defeasance, redemption, Each Group Member may purchase, retirement redeem or otherwise acquire Capital Stock issued by it (i) in an amount not to exceed, when aggregated with all such purchases, redemptions and acquisitions undertaken by all Group Members pursuant to this clause (i) at any time during the term of this Agreement, $10,000,000, and (ii) with the proceeds received from the substantially concurrent issue of new shares of its common stock or other acquisition of subordinated Indebtedness of the Company or common Capital Stock; provided that any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtednesssuch issuance is otherwise permitted hereunder (including by Section 7.5(d));
(di) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) each Group Member may make repurchases of Equity Interests Capital Stock deemed to occur upon exercise of stock options, options or warrants if such Equity Interests represent repurchased Capital Stock represents a portion of the exercise price of such stock optionsoptions or warrants, and (ii) repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to a current or former officer, director, employee or consultant to pay for the taxes payable by such Person upon such grant or award (or upon vesting thereof);
(e) each Group Member may deliver its common Capital Stock upon conversion of any convertible Indebtedness having been issued by such Group Member; provided that such Indebtedness is otherwise permitted by Section 7.2; and
(f) so long as no Default has occurred the Loan Parties and is continuing, the repurchase or other acquisition for value of any Equity Interests their Subsidiaries may make Restricted Payments not otherwise permitted by one of the Company or any Restricted Subsidiary foregoing clauses of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Datethis Section 7.6; provided that the aggregate price paid for amount of all such repurchased, redeemed, acquired or retired Equity Interests Restricted Payments made pursuant to this clause (f) shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary5,000,000.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Restricted Payments. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of any of the Issuer's Equity Interests or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of any of the Issuer's Equity Interests or any of the Issuer's Restricted Subsidiaries' Equity Interests in their capacity as such (iother than dividends or distributions payable in the Issuer's Equity Interests (other than Disqualified Stock) or dividends or distributions payable to the Issuer or one of its Restricted Subsidiaries); (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyIssuer) any of the Issuer's Equity Interests or any Equity Interests of the Company Issuer's direct or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)indirect parent; (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at the Stated MaturityMaturity thereof; or (iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
; and (b) the Company Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if 38 such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
and (c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after the Issue Closing Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (5), (6) and (g7) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Ai) 50% of the cumulative Issuer's Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date beginning January 1, 2002 to the end of the Company’s Issuer's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company Issuer since the Issue Closing Date as a contribution to its common equity capital or from the issue or sale of the Issuer's Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of the Issuer's convertible or exchangeable Disqualified Stock or the Issuer's convertible or exchangeable debt securities of the Company that have have, in either case, been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary one of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockIssuer's Subsidiaries), plus plus
(Ciii) to the extent that any Restricted Investment that was made after the Issue Closing Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); plus
(iv) plus (D) if any Unrestricted Subsidiary $50.0 million. So long as no Default or Event of Default has occurred and is redesignated as a Restricted Subsidiarycontinuing or would be caused thereby, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing preceding provisions will not prohibit any of the following:
prohibit: (a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
; (b2) the redemption, repurchase, retirement, defeasance or other acquisition of any of the Issuer's subordinated Indebtedness or of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Equity Interests, or any dividend or other distribution in respect thereof, in exchange forfor Equity Interests (other than Disqualified Stock) of, or out of in an amount equal to the net cash proceeds of the substantially concurrent a sale (other than to a Restricted Subsidiary one of the CompanyIssuer's Restricted Subsidiaries) of, other of the Issuer's Equity Interests of the Company (other than any Disqualified Stock)) or a capital contribution to the equity of the Issuer in the 30-day period prior thereto; provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c)(B4)(c)(ii) of the preceding paragraph;
; (c3) the defeasance, redemption, purchase, retirement repurchase or other acquisition or retirement of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (d4) the payment of any dividend or distribution by a Restricted Subsidiary any of the Company Issuer's Restricted Subsidiaries to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (f5) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any of the Issuer's Equity Interests or any Equity Interests of any of the Company Issuer's Restricted Subsidiaries or any Restricted Subsidiary direct or indirect parent company of the Company Issuer held by any member of the Company’s (or any of its Restricted Subsidiaries’) Issuer's management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $3.0 million in any twelve-month period; provided(6) any Restricted Payment for the purpose of defeasing, furtherredeeming, that such agreement repurchasing or such repurchase, redemption otherwise acquiring or other acquisition or retirement or retiring the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in 2003 Notes and any jurisdiction to the extent such loans or advances are reasonably necessary Restricted Payment as contemplated to be made in connection to ISP with conducting the business proceeds of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees issuance of the Company Initial Notes; and its (7) payments required by the Tax Sharing Agreements as in effect on the Closing Date, and amendments thereto that do not adversely affect in any material respect the Issuer, the Issuer's Restricted Subsidiaries in or the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07Holders. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this Section 4.07 will be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination shall Directors whose resolution with respect thereto will be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million.
Appears in 1 contract
Sources: Indenture (International Specialty Products Inc /New/)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness of the Company or any Guarantor that is unsecured or contractually subordinated in right of payment to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Subsidiary Guarantees, as the case may beCompany and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iii4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 4.09(a) hereof; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date since December 11, 2007 (excluding Restricted Payments permitted by clauses (b) through 2)- (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g14) of the next succeeding paragraph), and (ySection 4.07(b) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basishereof), is less than the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date October 1, 2007 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value Fair Market Value of Strategic Assets transferred marketable securities or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case other property received by the Company since the Issue Date after December 11, 2007 as a contribution to its common equity capital or from the issue or sale of Qualifying Equity Interests of the Company or from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or convertible or exchangeable debt securities of the Company, in each case that have been converted into or exchanged for Qualifying Equity Interests of the Company (other than Disqualified Stock) Qualifying Equity Interests and convertible or from the issuance or sale of exchangeable Disqualified Stock or debt securities sold to a Subsidiary of the Company that have been converted into, Company); plus
(C) 100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or exchanged other property received from the sale or redeemed for, such Equity Interests other disposition (other than any such Equity Interests, Disqualified Stock to the Company or convertible debt securities sold to a Restricted Subsidiary Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and other than Disqualified Stock repurchases and redemptions of such Restricted Investments from the Company or convertible debt securities that have been converted intoits Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constituted Restricted Investments by the Company or exchanged or redeemed forits Restricted Subsidiaries when made, Disqualified Stock)in each case after December 11, plus 2007; plus
(CD) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary of the Company designated as such after December 11, 2007 is redesignated as a Restricted SubsidiarySubsidiary after the Issue Date, the lesser of (1) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Company's Restricted Subsidiaries Investment in such Subsidiary as of the date of redesignation such redesignation; Plus
(E) 100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received from the sale (2other than to the Company or a Restricted Subsidiary) of the amount stock of an Unrestricted Subsidiary (other than to the extent such Investments. Investment constituted a Permitted Investment) or of any dividends or distributions received by the Company after December 11, 2007 from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period.
(b) The foregoing provisions of Section 4.07(a) hereof will not prohibit any of the followingprohibit:
(a1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof of the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock)) or from the substantially concurrent contribution of equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not be considered to be Qualifying Equity Interests for purposes of Section 4.07(a)(3)(B) hereof;
(3) the repurchase, redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) or retirement for value of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee or any Indebtedness of the Company or any Guarantor that is unsecured, with the net cash proceeds from an a substantially concurrent incurrence of, or in exchange for, of Indebtedness that is permitted to be incurred pursuant to Section 4.09 hereof and constitutes Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any current or any Restricted Subsidiary former officer, director, employee or consultant of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’Subsidiaries (or any permitted transferees of such Persons) management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateagreement, shareholders' agreement, or other management or employee benefit plan or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $5.0 million in any twelve-month period; providedplus the cash proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries after December 11, further2007, less the amount of any Restricted Payments previously made with the cash proceeds described in this proviso of this clause (4);
(5) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or warrants to the extent such Equity Interests represent a portion of the exercise price of those stock options or warrants;
(6) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company issued on or after the Issue Date or any class or series of preferred stock of any Restricted Subsidiary of the Company issued in accordance with Section 4.09 hereof;
(7) the payment of Special Dividends pursuant to the Registration Rights Agreement;
(8) cash payments in lieu of the issuance of fractional shares in an aggregate amount not to exceed $10.0 million since the Issue Date;
(9) the repayment of intercompany debt, the incurrence of which was permitted pursuant to Section 4.09 hereof;
(10) payments made in satisfaction of change of control obligations with respect to subordinated or unsecured Obligations; provided that such agreement the Company concurrently fulfills its obligations under Section 4.15 hereof;
(11) payments made in satisfaction of an asset sale offer with respect to subordinated or such unsecured Obligations; provided that the Company concurrently fulfills its obligations under Section 4.10 hererof;
(12) distributions or payments of commissions, discounts and other fees and charges incurred in connection with any Permitted Securitization Program;
(13) the repurchase, redemption, defeasance or other acquisition or retirement for value of any Existing Notes; and
(14) other Restricted Payments (except for the declaration and payment of any dividend to holders of common stock or the repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority for value of the disinterested members of the Board of Directors;
(hany common stock) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing100.0 million since the Issue Date, advances constituting Investment or loans to directorsprovided, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationhowever, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments that at the time of such designationof, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such and after giving effect to, any Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph Payment under clause (14) of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes 4.07(b), no Default shall have occurred and be continuing or would occur as a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of consequence thereof.
(ac) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Fair Market Value of any non-assets or securities in excess of $25.0 million (other than cash Restricted Payment shall or Cash Equivalents) that are required to be valued by this Section 4.07 will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeCompany.
Appears in 1 contract
Sources: Indenture (Unisys Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company or other Affiliate of the Company (other than any such Equity Interests owned by a Wholly Owned Subsidiary of the Company or any of its Restricted SubsidiariesCompany); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section the first paragraph of section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and or any of its Restricted Subsidiaries after the Issue Date August 11, 1997 (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii) and or (gvi) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter immediately following the Issue Date August 11, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since August 11, 1997 of Equity Interests of the Company (other than Disqualified StockStock and other than as provided in clause (h) of the definition of Permitted Investments), or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) to the extent that any Restricted Investment that was made by the Company or any of its Subsidiaries after the Issue Date August 11, 1997 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness which is subordinated Indebtedness of to the Company Notes or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of Indebtedness which is subordinated Indebtedness of to the Company or any Guarantor Notes with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Company or Holdings held by any former employee, director or consultant of the Company or any Subsidiary or Holdings issued pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate amount of Restricted Payments made under this clause (v) does not exceed (A) $1.0 million in any calendar year and (B) $3.0 million in the aggregate since August 11, 1997, provided further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any of its Subsidiaries in connection with a repurchase of Equity Interests of the Company will not be deemed to constitute a Restricted Subsidiaries;
Payment for purposes of this covenant or any other provision of this Indenture; (evi) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such options upon surrender of Equity Interests represent a portion of to pay the exercise price of such stock options;
option; (fvii) so long as no Default has occurred the payment by the Company of dividends to Holdings for the purpose of (A) permitting Holdings to satisfy federal, state and is continuing, local income tax obligations to the repurchase or other acquisition for value extent such obligations are actually due and owing and are a direct result of any Equity Interests the net income of the Company being included on a consolidated, combined or any Restricted Subsidiary of unitary income tax return filed by Holdings or otherwise being attributed to Holdings for tax purposes and (B) permitting Holdings to pay the Company for allocation necessary fees and expenses to maintain its corporate existence and good standing (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries which shall not in excess of exceed $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date500,000 per annum); provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests amount of dividends described in this clause (vii) shall not exceed €1,000,000 in any twelve-month periodbe excluded from the calculation of the amounts of Restricted Payments hereunder; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement and (viii) reasonable and customary directors' fees to the members of Holdings' or the agreement are approved by a majority Company's board of the disinterested members of the Board of Directors;
directors, provided that with respect to clauses (hii), (iii), (v), (vi) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction(vii) above, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has or Event of Default shall have occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if continuing immediately after such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07transaction. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as Subsidiary of the case may beCompany, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee, not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (B&g Foods Inc)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as stockholders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Consolidated Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, :
(a) at the time of and after giving effect to such Restricted Payment:
(a) , no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;,
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the Consolidated Interest Coverage Ratio test set forth in first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries on and after the Issue Date (excluding Restricted Payments permitted by by, and made pursuant to, clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fii) and (giii) and (viii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum sum, without duplication and except as credited in the next succeeding paragraph, of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from beginning on the first last day of first the fiscal quarter following immediately preceding the Issue Date to and ending on the end last day of the Company’s most recently ended fiscal quarter for which internal financial statements are available at immediately preceding the time date of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case Net Cash Proceeds received by the Company since the Issue Date on and after November 25, 1998 as a contribution to its common equity capital Capital Contribution or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible converted debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus the amount of Net Cash Proceeds received by the Company upon such conversion or exchange, plus (Ciii) the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries on and after the Issue Date resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, or (z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of Restricted Investments made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary on and after the Issue Date, plus (iv) to the extent that any Restricted Investment that was made on and after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of, to the extent paid to the Company or a Restricted Subsidiary, (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
foregoing provisions; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially substan tially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided PROVIDED that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for for, and the Equity Interests issued or exchanged for, any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) of the preceding paragraph and each other clause of this paragraph;
; (ciii) the defeasance, redemption, purchaseretirement, retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence ofNet Cash Proceeds from, or issued in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
; PROVIDED that the amount of any such Net Cash Proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (dc) of the preceding paragraph and each other clause of this paragraph; (iv) the payment of any dividend or other distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any of its Restricted Subsidiary of the Company Subsidiaries held by any member of the Company’s ('s or any of its such Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue DateSubsidiary's management; provided PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $1.0 million in any twelve-month periodfiscal year; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or (vi) retiring any Equity Interests of the agreement are approved Company to the extent necessary (as determined in good faith by a majority of the disinterested members of the Board of Directors;
(h, whose determination shall be evidenced by a resolution thereof) loans to prevent the loss, or advances in to secure the ordinary course renewal or reinstatement, of business to Affiliates any license or Persons with which franchise held by the Company or any Restricted Subsidiary from any governmental agency; (vii) Investments in Telecommunications Assets, PROVIDED that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (vii) that are at the time outstanding, does not exceed the sum of (y) $15.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (vii) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary may have contractual arrangements in any jurisdiction of the Company, except to the extent any such loans net reduction amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or advances are reasonably necessary any other clause of this paragraph; (viii) Investments in Telecommunications Assets made after November 25, 1998 with the (x) Net Cash Proceeds, (y) the fair market value of Telecommunications Assets or (z) Equity Interests of a Person that becomes a Restricted Subsidiary (PROVIDED that the assets of such Person consist entirely or substantially entirely of Telecommunications Assets), in each case, received from the issuance or sale (other than to be made in connection with conducting a Subsidiary of the business Company) of Equity Interests of the Company (other than any Disqualified Stock) PROVIDED, that the amount of any such Net Cash Proceeds that are utilized for any such Investment shall be excluded from clause (c) of the preceding paragraph and each other clause of this paragraph; (ix) Investments in ION, PROVIDED that the aggregate fair market value thereof (measured on the date each such Investment was made or a Subsidiary returned, as applicable), when taken together with all other Investments made pursuant to this clause (ix) does not exceed the sum of (I) $15.0 million, plus, (II) for each fiscal year, an amount equal to the amount of cash received by the Company or any of its Restricted Subsidiaries from ION or any of its Subsidiaries during such fiscal year, except to the extent any such amount is included in such jurisdiction the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph, plus (III), to the extent necessary to pay reasonable and in a form that is customary to address foreign investment regulation or practice in such jurisdictionnecessary operating expenses of ION, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
1.0 million in each fiscal year; and (i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(kx) Investments in connection the German Joint Venture, PROVIDED that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (x) that are at the Permitted Closing Stepstime outstanding, does not exceed the sum of (y) $100.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (x) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, except to the extent such amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph. The Board of Directors may not designate any Restricted Subsidiary of the Company (other than a newly created Subsidiary in which no Investment has previously been made (other than any de minimus amount required to be capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary if (a "Designation") unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation Designation; (ii) the Company would, immediately after giving effect to such Designation, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of Section 4.09 hereof and (iii) the Company would not cause a Default be prohibited under the Indenture from making an Investment at the time of such Designation (except at any time during which assuming the effectiveness of such Designation for purposes of this Section 4.07) in an amount equal to the fair market value of the net Investment of the Company maintains Investment Grade Status)and all Restricted Subsidiaries in such Subsidiary on such date. For purposes In the event of making any such designationDesignation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall will be deemed to be Restricted Payments at an Investment made as of the time of such designationDesignation and will reduce the amount available for Restricted Payments under the first or second paragraph of this covenant, as applicable. All such outstanding Investments will be deemed to constitute Restricted Payments in an amount equal to the fair market value of such Investments at the time of such designationDesignation. Such designation shall only A Designation may be permitted if such Restricted Payments would revoked and an Unrestricted Subsidiary may thus be permitted at such time and if such redesignated a Restricted Subsidiary otherwise meets (a "Revocation") by a resolution of the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant delivered to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by Trustee; PROVIDED that the Company will not make any Revocation unless: (i) no Default or Event of Default shall have occurred and its Restricted Subsidiaries in such Unrestricted Subsidiary be continuing at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution after giving effect to such action Designation; and evidencing the valuation (ii) all Liens and Indebtedness of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in Subsidiary outstanding immediately following such Revocation would, if incurred at such time, have been permitted to be incurred at such time for all purposes under this Indenture (in the case of a designation) and with this Section 4.07Indenture. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company (or such Restricted Subsidiary, as the case may be, ) pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment asset(s) or securities that are required to be valued by this covenant shall be determined in the manner contemplated good faith by the definition Board of the term “Directors (such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteevalue exceeds $15.0 million).
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) purchase, redeem declare or otherwise acquire pay any dividend or retire for value make any distribution (including, without limitation, including in connection with any merger or consolidation involving the Companyconsolidation) on account of any Equity Interests of the Company or any of its Restricted Subsidiaries (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company, any of its Restricted Subsidiaries or any other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the a Subsidiary Guarantees, as the case may beGuarantee, except a payment at the original final maturity thereof or in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of interest or principal at Stated Maturityany event); or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;, and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted would be able to incur at least $1.00 of additional Indebtedness pursuant to under the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; , and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (v), (vi) and (gviii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date beginning on April 1, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), plus (B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity from contributions of capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock Interests (or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C3) to the extent that any Restricted Investment that was made after the Issue Date date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made ); provided that no cash proceeds received by the Company and its from the issue or sale of any Equity Interests issued by the Company will be counted in determining the amount available for Restricted Subsidiaries in Payments under this clause (c) to the extent such Subsidiary as proceeds were used to redeem, repurchase, retire or acquire any Equity Interests of the date Company pursuant to clause (ii) of redesignation and the next succeeding paragraph, to defease, redeem or repurchase any subordinated Indebtedness pursuant to clause (2iii) of the amount next succeeding paragraph or to repurchase, redeem or acquire any Equity Interests of such Investmentsthe Company pursuant to clause (iv) of the next succeeding paragraph. The foregoing provisions will not prohibit any or all of the following:
following (aeach and all of which (1) constitutes an independent exception to the foregoing provisions and (2) may occur in addition to any action permitted to occur under any other exception): (i) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said such date of declaration such payment would have complied with the provisions of this the Indenture;
; (bii) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(Bc)(2) of the preceding paragraph;
; (ciii) the defeasance, redemption or repurchase of subordinated Indebtedness with the net proceeds from an incurrence of Permitted Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) of Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds 50 that are utilized for any such redemption, purchaserepurchase, retirement or other acquisition of subordinated Indebtedness shall be excluded from clause (c)(2) of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
preceding paragraph; (div) the payment funding of loans (but not including the forgiveness of any dividend such loan) to executive officers, directors or distribution by a Restricted Subsidiary of shareholders for relocation loans, bonus advances and other purposes consistent with past practices or the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock optionspurchase, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase redemption or other acquisition for value of shares of Capital Stock of the Company (other than Disqualified Stock) or options on such shares held by the Company's or the Restricted Subsidiaries' officers or employees or former officers or employees (or their estates or trusts or beneficiaries under their estates or trusts for the benefit of such beneficiaries) upon the death, disability, retirement or termination of employment of such current or former officers or employees pursuant to the terms of an employee benefit plan or any other agreement pursuant to which such shares of Capital Stock or options were issued or pursuant to a severance, buy-sell or right of first refusal agreement with such current or former officers or employees provided that the aggregate amount of any such loans funded and cash consideration paid, or distributions made, pursuant to this clause (iv) does not in any one fiscal year exceed $1.0 million; (v) the payment of dividends by a Restricted Subsidiary on any class of common stock of such Restricted Subsidiary if such dividend is paid pro rata to all holders of such class of common stock; (vi) the repurchase of any class of common stock of a Restricted Subsidiary if such repurchase is made pro rata with respect to such class of common stock; (vii) any other Restricted Payment (other than (A) a dividend or other distribution on account of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
and (gB) so long as no Default has occurred and is continuing, the repurchasea purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or , any of its Restricted Subsidiaries’Subsidiaries or any Affiliate of the Company) management if the amounts thereof, together with all other Restricted Payments made pursuant to any management equity subscription agreement or stock option agreement in effect as this clause since the date of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall Indenture do not exceed €1,000,000 in any twelve-month period$5.0 million; providedand (viii) the redemption, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing StepsNotes. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation Subsidiary; provided, however, that (i) no Default or Event of Default shall have occurred and be continuing or would not cause a Default arise therefrom, (except at any time during which the Company maintains Investment Grade Status). For purposes of making ii) such designation, all when considered as an Investment as described in the next sentence, is at that time permitted under this Section 4.07 and (iii) immediately after giving effect to such designation, the Company would be able to incur at least $1.00 of additional Indebtedness under the Fixed Charge Coverage Ratio set forth in the first paragraph of Section 4.09 hereof. All such outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be constitute Restricted Payments Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation, in an amount equal to designation and (ii) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments Investment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board . Not later than the date of Directors may also redesignate making any Unrestricted Subsidiary Restricted Payment, the Company shall deliver to be a the Trustee an Officers' Certificate stating that such Restricted Subsidiary if such redesignation complies with Payment is permitted and setting forth the requirements described in basis upon which the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of calculations required by this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraphwere computed, then the aggregate amount of such Restricted Payments which calculations shall be reduced by based upon the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeCompany's latest 51 available financial statements.
Appears in 1 contract
Restricted Payments. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (ia) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection the Company may declare and pay dividends with any merger or consolidation involving the Company) any respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Company may declare and make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company or and its Subsidiaries and (d) the Company and its Subsidiaries may declare any of Restricted Payment; provided that the Company and its Restricted Subsidiaries (other than may only make any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); Payment in reliance on this clause (iid) make any payment on or so long as (x) no Default and (y) no Unmatured Default with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness to an event that is subordinated in right of payment would give rise to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”Default under Section 8.1(A), unless8.1(B)(ii) or 8.1(F) hereof, at the time of has occurred and is continuing prior to making such Restricted Payment or would arise after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving including pro forma effect effect) thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodand in an amount not to exceed, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together when aggregated with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after during the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) fiscal year of the next succeeding paragraph)Company in which such Restricted Payment is made, the sum of (x) $25,000,000 (provided that, neither (i) the $4,500,000 share repurchase made by the Company in the fiscal quarter ending on or about May 29, 2009 nor (ii) an amount equal to 50% of the cash dividend paid by the Company in the fiscal quarter ending on or about May 29, 2009 shall be deemed to constitute a Restricted Payment in respect of the fiscal year of the Company ended on or about February 26, 2010) and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available Additional Permitted RP Amount determined at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Sources: Credit Agreement (Steelcase Inc)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of its Restricted Subsidiariesthe Company); ;
(ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Indebtedness that is subordinated in right of payment to (other than intercompany Indebtedness between or among the Notes or the Subsidiary Guarantees, as the case may beCompany and its Restricted Subsidiaries), except a payment of interest or principal at Stated MaturityMaturity (or within one year thereof); or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereofof such Restricted Payment;
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 10.10(a) hereof; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) andthe amount expended for such purposes, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (if other than (i) dividends cash, being the fair market value on the date of transfer or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisissue), is less than the sum (of the following amounts, without duplication) of the following: :
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date July 1, 2008 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B) 100% of (x) the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case any non-cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company), (y) the amount by which Indebtedness of the Company and or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests of the Company (other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus and (z) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (x) or (y) above; plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cashcash or Cash Equivalents, the cash return of capital with respect an amount equal to such Restricted Investment cash or Cash Equivalents (less the cost of disposition, if any) plus ); plus
(D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value net reduction in Investments in Unrestricted Subsidiaries after the Issue Date resulting from (A) payments of dividends or interest or other transfers of assets to the Investments previously made Company or any Restricted Subsidiary from Unrestricted Subsidiaries, (B) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries or (C) the receipt of proceeds by the Company and its or any Restricted Subsidiaries Subsidiary from the sale or other disposition of any portion of any Investment in such Subsidiary as an Unrestricted Subsidiary’ plus
(E) $218.8 million.
(b) The provisions of the date of redesignation and (2Section 4.07(a) the amount of such Investments. The foregoing provisions hereof will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B3)(B) of the preceding paragraphSection 4.07(a) hereof;
(c3) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to (i) the holders of its common Equity Interests on a pro rata basis or (ii) the Company or any a Subsidiary of its Restricted Subsidiariesthe Company;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f5) so long as no Default has or Event of Default shall have occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any future, present or former employee or director (or any of their respective heirs or estates or permitted transferees) of the Company or any of the Company’s Restricted Subsidiaries pursuant to any agreements (including employment agreements) or management equity plan or stock option plan or any other management or employee benefit plan or agreement (including any management equity subscription agreement, stock option agreement or similar written arrangement) approved by the Board of Directors; provided, that the aggregate Restricted Payments made under this clause (e) do not exceed in any calendar year $5.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $10.0 million in any calendar year);
(6) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of the Company deemed to occur upon exercise or exchange of warrants, options or rights to acquire Equity Interests if such Equity Interests represent a portion of the exercise or exchange price of such warrants, options or rights, and any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of warrants, options or rights to acquire Equity Interests;
(7) payments or distributions to dissenting shareholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 8.1 hereof;
(8) cash payments in lieu of the issuance of fractional shares;
(9) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company held by Company, or any member class or series of preferred stock of a Restricted Subsidiary of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement , in effect as of each case issued after the Issue Date; provided that Date in accordance with the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 Consolidated Interest Coverage Ratio test described in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;Section 10.10(a) hereof and
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j10) other Restricted Payments not to exceed $15,000,000 25.0 million in the aggregate; andaggregate since the Issue Date. In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (3) of Section 10.11(a), amounts expended pursuant to clauses (2), (3), (4), (6), (7), (8), (9) and (10) of this Section 10.11(b) shall be excluded from the calculation, and amounts expended pursuant to clauses (1) and (5) of this Section 10.10(b) shall be included in the calculation.
(kc) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which and if such Restricted Subsidiary otherwise meets the Company maintains Investment Grade Status)definition of an Unrestricted Subsidiary. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, . All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (1) the net book value of such Investments at the time of such designation and (2) the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiarytime.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of
(ad) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.”
Appears in 1 contract
Sources: First Supplemental Indenture (Frontier Oil Corp /New/)
Restricted Payments. The Company shall notDeclare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, and shall not permit or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of its Restricted Subsidiaries any Group Member (or enter into or be party to, or make any payment under, any Synthetic Purchase Agreement with respect to any such Capital Stock if the purchase, redemption, defeasance, retirement or other acquisition thereof by the Company and its Subsidiaries would otherwise be prohibited under this Section 7.6), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, (i) purchasewhether in cash or property or in obligations of the Company, redeem the Co-Borrowers or otherwise acquire any Subsidiary Guarantor, or retire for value (including, without limitation, in connection enter into any derivatives or other transaction with any merger financial institution, commodities or consolidation involving stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating any Group Member to make payments (other than payments solely in the form of common stock of the Company) to such Derivatives Counterparty as a result of any Equity Interests change in market value of any such Capital Stock (collectively, “Restricted Payments”), except that:
(a) any Subsidiary Guarantor may pay cash dividends or distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:and
(ab) so long as no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, result therefrom at the time of such dividends are declared or other Restricted Payment and after giving is made (determined on a pro forma effect thereto basis as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth Payments or dividends were paid in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) declared or securities proposed to be transferred or issued by made, as applicable), the Company or such may make any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteePayments.
Appears in 1 contract
Restricted Payments. The Company shall notBorrower will not declare or make, and shall not permit any of its Restricted Subsidiaries toor agree to pay or make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”)Payment, unless, at the time of and after giving effect to such Restricted Paymentexcept:
(a) subject to the delivery by the Borrower to the Agents of reasonable documentary evidence thereof (and without duplication of any Asset Taxes paid pursuant to Section 6.07(c)), any Restricted Payments made for the purpose of allowing the shareholders of Holdings to pay Asset Taxes;
(b) the payment of dividends in any fiscal year of the Borrower in an aggregate amount not exceeding the lesser of $14,325,000 and the aggregate amount of the portions of Excess Cash Flow for such fiscal year not required to be used to prepay the Loans pursuant Section 2.04(b)(i) (as such aggregate amount may be reduced on a Dollar-for-Dollar basis by the amount of prepayments, redemptions or repurchases, and other payments in respect, of Indebtedness of the Borrower under the Subordinated Seller Loan Agreement or any Additional Seller Subordinated Debt made pursuant to paragraph (c) below), provided that (i) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment result therefrom and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making no such dividend is not a Wholly Owned Restricted Subsidiary, dividends payment shall be permitted from any such portion of Excess Cash Flow for any Measurement Period until after the mandatory prepayment required pursuant to its shareholders on a pro rata basis), is less than the sum (without duplicationSection 2.04(b)(i) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income be made for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that Measurement Period shall have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraphmade;
(c) the defeasanceprepayments, redemptionredemptions or repurchases, purchaseand other payments in respect, retirement or other acquisition of subordinated Indebtedness of the Company Borrower under the Subordinated Seller Loan Agreement, any Additional Seller Subordinated Debt or any Guarantor Permitted Subordinated Debt made with the net cash proceeds from an incurrence ofamounts otherwise permitted to be used for the payment of dividends pursuant to paragraph (b) above, provided that, upon any such prepayment, redemption or in exchange repurchase made pursuant to this paragraph (c), the amount otherwise available for the payment of dividends under paragraph (b) above shall be reduced on a Dollar-for, Permitted Refinancing Indebtedness;-Dollar basis; and
(d) the payment payments of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value amounts due on account of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously Additional Seller Subordinated Debt made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at Borrower with the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation Net Cash Proceeds of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteePermitted Excluded Shares Disposition.
Appears in 1 contract
Restricted Payments. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c3) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b2) through (e10) andinclusive, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Aa) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus PLUS
(Bb) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockStock and other than Equity Interests sold to members of management) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus PLUS
(Cc) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus ), PLUS
(Dd) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made such redesignated Subsidiary (as determined in good faith by the Company and its Restricted Subsidiaries in such Subsidiary Board of Directors) as of the date of its redesignation and or (2ii) pays any cash dividends or cash distributions to the amount Company or any of its Restricted Subsidiaries, 100% of any such Investmentscash dividends or cash distributions made after the date of this Indenture. The foregoing preceding provisions will not prohibit any of the followingprohibit:
(a1) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenture;
(b2) so long as no Default has occurred and is continuing or would be caused thereby, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor Restricted Subsidiary or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c)(B3)(b) of the preceding paragraph;
(c3) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a pro rata basis;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f5) so long as no Default has occurred and is continuing, the repurchase continuing or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuingwould be caused thereby, the repurchase, redemption or other acquisition or retirement for value of (including any disbursements to Holdings for such purpose) any Equity Interests of Holdings, the Company or any Restricted Subsidiary of the Company held by any member or former member of Holdings, the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 (a) $1.0 million in any twelve-month period; providedcalendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to clause (b)) of $2.0 million in any calendar year), further, that such agreement PLUS (b) the aggregate cash proceeds received by the Company and its Restricted Subsidiaries from any issuance or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority reissuance of the disinterested Equity Interests to members of management and the Board proceeds of Directorsany "key man" life insurance policies in any calendar year; PROVIDED, FURTHER that the cancellation of Indebtedness owing to the Company or its Restricted Subsidiaries from members of management in connection with such repurchase of Equity Interests will not be deemed to be a Restricted Payment;
(h6) loans distributions or advances payments (a) to Holdings in amounts necessary to permit Holdings to satisfy income tax obligations of Holdings that are actually due and owing and are attributable to its ownership of the Company, PROVIDED that such amounts do not exceed the amount that would otherwise be due and owing if the Company and its Restricted Subsidiaries filed separate tax returns, PROVIDED HOWEVER, that (1) notwithstanding the foregoing, in the ordinary course case of business to Affiliates or Persons with which determining the amount payable by the Company to Holdings for income tax obligations, such payment shall not exceed an amount determined on the basis of assuming that the Company is the parent company of an affiliated group filing a consolidated Federal income tax return and that Holdings and the Restricted Subsidiaries are members of such affiliated group and (2) any payments for income tax obligations shall either be used by Holdings to pay tax liabilities within 90 days of Holding's receipt of such payment or a Subsidiary may have contractual arrangements in any jurisdiction refunded to the extent such loans or advances are reasonably Company and (b) to Holdings to pay the necessary fees and expenses to be made maintain its corporate existence and good standing and, so long as no Default has occurred and is continuing, other general and administrative expenses (which amounts in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount shall not to exceed $7,500,000 outstanding at any one time500,000 per year);
(i7) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directorsthe declaration and payment of dividends on Disqualified Stock, officers and employees of the Company and its Restricted Subsidiaries that was issued in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregatecompliance with this Indenture;
(j8) repurchases of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price thereof;
(9) other Restricted Payments purchases of fractional Equity Interests of the Company, or distributions to Holdings to permit it to purchase fractional Equity Interests of Holdings, for aggregate consideration not to exceed $15,000,000 in 100,000 since the aggregatedate of this Indenture; and
(k10) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a so long as no Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationhas occurred and is continuing, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be other Restricted Payments at the time of such designation, in an amount equal not to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07exceed $1.0 million. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this Section 4.07 will be determined in the manner contemplated by the definition Board of the term “fair market value,” and the results of such determination shall Directors whose resolution with respect thereto will be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million. Not later than the date of making any Restricted Payment, the Company will deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted under the terms of this Indenture and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (H&e Finance Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly Make or indirectly, (i) purchase, redeem declare or otherwise acquire or retire for value (including, without limitation, in connection with become obligated to make any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries Payment (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiariesobligations that are conditioned on compliance with this SECTION 8.04); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make that this SECTION 8.04 shall not apply to any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) made to any Loan Party (other than a Limited Guarantor);
(b) made by any Restricted Subsidiary to the holders of any class of its Capital Stock, pro rata in accordance with their respective interests in such class of Capital Stock;
(c) consisting of payments under Permitted Tax Sharing Agreements;
(d) so long as no Default or Event of Default shall have occurred and or be continuing or would shall occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning consisting of the applicable four-quarter period, have been permitted to incur at least $1.00 purchase for value of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount shares of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) Capital Stock of the next succeeding paragraph)Borrower or warrants, and (y) the aggregate amount of all dividends and options or other payments or distributions paid subsequent rights to the Issue Date on account acquire Capital Stock of the Company’s Borrower held by directors, officers or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders employees of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyBorrower upon death, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchasedisability, retirement or other acquisition termination of subordinated Indebtedness of the Company or employment in an aggregate amount not to exceed $3,000,000 in any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiariestwelve-month period;
(e) repurchases made (i) to Refinance any Subordinated Debt in an aggregate amount of Equity Interests deemed up to occur upon exercise of stock options$100,000,000, if PROVIDED that, after giving effect to such Equity Interests represent a portion of Restricted Payment and the exercise price Refinancing of such stock optionsSubordinated Debt, the Aggregate Revolving Commitments exceed the Total Revolving Outstandings by at least $75,000,000, (ii) to pay any premium, "make-whole" amounts, penalties, fees and expenses in connection with a Refinancing of Subordinated Debt permitted pursuant to clause (i) above or (iii) to pay any premium, "make-whole" amounts, penalties, fees and expenses of up to $15,000,000 in the aggregate in connection with any Refinancing of any Subordinated Debt that does not otherwise involve the making of any Restricted Payments;
(f) so long as no Default has shall have occurred or be continuing or shall occur as a consequence thereof, consisting of the purchase from the Permitted Holders, of Capital Stock of the Borrower owned by any of them for an aggregate purchase price of up to $50,000,000 PROVIDED THAT (i) no such purchase shall occur prior to December 31, 2005 and is continuing(ii) not more than $25,000,000 may be committed to be purchased, or purchased, prior to December 31, 2007 (PROVIDED, HOWEVER, that, notwithstanding the foregoing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company Borrower and its Restricted Subsidiaries not in excess may, at any time, commit to purchase Capital Stock from the Permitted Holders so long as the agreement evidencing such commitment provides that the purchase will occur at a time permitted by this clause (f) and only to the extent such purchase is permitted by this clause (f) as of $2,500,000 in any twelve-month period;the proposed purchase date); and
(g) so long as no Default has occurred and is continuing, made by the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Borrower in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
in excess of the sum of (i) so long as $40,000,000, (ii) an additional $5,000,000 during any fiscal year of the Borrower (commencing with the fiscal year ending June 30, 2004) and (iii) an additional amount in any fiscal year of the Borrower (commencing with the fiscal year ending June 30, 2004) equal to 50% of Excess Cash Flow for the immediately preceding fiscal year, PROVIDED THAT (x) no Default has shall have occurred and is continuing, advances constituting Investment be continuing or loans to directors, officers would result therefrom and employees of (y) the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated Borrower shall be deemed to be Restricted Payments at the time of such designation, in an amount equal have delivered to the fair market value of such Investments at Administrative Agent a Pro Forma Compliance Certificate demonstrating that the time of such designation. Such designation shall only be permitted if such Restricted Payments Borrower would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies in compliance with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution SECTION 8.19 after giving effect to such action and evidencing Restricted Payment on a Pro Forma Basis as of the valuation most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information (any portion of any Investment relating thereto such amounts described in clauses (as determined in good faith by the Board of Directorsii) and an Officers’ Certificate certifying (iii) above that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth is not paid in this Indenture (a particular fiscal year may be carried forward and paid in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteesubsequent fiscal year).
Appears in 1 contract
Restricted Payments. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) other than dividends or distributions to the Company or any Guarantor or payable in Equity Interests (iother than Disqualified Stock) of the Company;
(b) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or Company, any entity that beneficially owns a majority of its Restricted Subsidiaries (other than any such Equity Interests owned by the Voting Stock of the Company or any of its Restricted Subsidiaries); entity through which such entity beneficially owns such stock;
(iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes (other than (i) the purchase, repurchase or other acquisition of Indebtedness that is subordinated to the Subsidiary GuaranteesNotes in anticipation of satisfying a sinking fund obligation, as principal installment or any payment at final maturity, in each case, due within one year of the case may bedate of such purchase, except a payment repurchase or other acquisition, and (ii) Indebtedness that is permitted under clause (iv) of interest or principal at Stated Maturitythe covenant described under Section 4.8(b) of this Indenture; or or
(iiid) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (iiid) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unlessUNLESS, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;, and
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.8(a); and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and or any of its Restricted Subsidiaries after the Issue Initial Maturity Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv), (vi), (ix) and or (gx) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of:
(without duplication) of the following: (A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter immediately following the Issue Initial Maturity Date to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B2) 100% of the aggregate of (1) the net cash proceeds and (2) or the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case property other than cash received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the Closing Date of Equity Interests of the Company (other than Disqualified Stock) ), or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus ; plus
(C3) to the extent that not already included in Consolidated Net Income of the Company for such period without duplication, any Restricted Investment that was made by the Company or any of its Restricted Subsidiaries after the Issue Closing Date is sold for cash or otherwise liquidated or repaid for cash, or any Unrestricted Subsidiary which is designated as an Unrestricted Subsidiary subsequent to the Closing Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of-
(A) the cash return of capital with respect to such Restricted Investment or Unrestricted Subsidiary (less the cost of disposition, if any); and
(B) plus the initial amount of such Restricted Investment or designated amount of such Unrestricted Subsidiary; plus
(D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (14) an amount equal to the fair market value net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances or other transfers of assets, in each case to the Investments Company or any Restricted Subsidiary from any Unrestricted Subsidiary; plus
(5) any amount which previously made was treated as a Restricted Payment on account of any Guarantee entered into by the Company or any Restricted Subsidiary to the extent that such Guarantee has not been called upon and its Restricted Subsidiaries in the obligation arising under such Subsidiary as of the date of redesignation and (2) the amount of such InvestmentsGuarantee no longer exists. The foregoing provisions will shall not prohibit any of the followingprohibit:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness to AutoNation with respect to the General Motors Letter of Credit which is subordinated Indebtedness of to the Company Notes or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that , PROVIDED that, the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bd)(iii)(2) of the preceding paragraph;
(ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of Indebtedness which is subordinated Indebtedness of to the Company Notes in exchange for or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests so long as the Company or any another Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Restricted SubsidiariesEquity Interests;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value Event of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any of its Restricted Subsidiary Subsidiaries from employees, former employees, directors, former directors, consultants and former consultants of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to Subsidiaries (or permitted transferees of any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationpersons), in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraphthe agreements, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiaryincluding employment agreements, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.equity subscription
Appears in 1 contract
Sources: Indenture (Anc Rental Corp)
Restricted Payments. The Company shall not(a) Declare or make, and shall not permit any of its Restricted Subsidiaries toor agree to declare or make, directly or indirectly, any Restricted Payment; provided, however, that a Restricted Payment may be made if (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of or immediately after giving effect to such Restricted Payment, (ii) immediately after giving effect to such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to Company could incur at least $1.00 of additional Coverage Indebtedness pursuant in accordance with Section 6.01 and (iii) immediately after giving effect to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made by the Company and its Restricted Subsidiaries on or after the Issue Closing Date (excluding other than those Restricted Payments permitted by described in clauses (biii) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (gxiii) of the next succeeding paragraph), and (y) does not exceed the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than sum of:
(i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for on a cumulative basis during the period (taken as one accounting period) from and including the first day of first the Company’s fiscal quarter following during which the Issue Closing Date to occurs and ending on the end last day of the Company’s most recently ended fiscal quarter for which internal financial statements are available at immediately preceding the time date of such Restricted Payment (or, if or in the event such Consolidated Net Income for such period is shall be a deficit, less minus 100% of such deficit), plus plus
(Bii) 100% of the aggregate net cash proceeds of and the Fair Market Value of any property or other asset received by the Company from (1) any capital contribution to the net cash proceeds Company after the Closing Date or any issue or sale after the Closing Date of any Qualified Equity Interests and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale after the Closing Date of Equity Interests of the Company (any Indebtedness or other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company convertible into or exercisable for Qualified Equity Interests that have been so converted intoor exercised, plus
(iii) in the case of a distribution on or exchanged disposition or redeemed forrepayment of any Restricted Investment, such Equity Interests an amount (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after not included in the Issue Date is sold for cash or otherwise liquidated or repaid for cash, calculation of Consolidated Net Income referred to in (i)) equal to the cash lesser of (x) the return of capital with respect to such Restricted Investment (including by dividend, distribution or sale of Equity Interests) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of dispositionthe disposition or repayment of such Investment (to the extent not included in the calculation of Consolidated Net Income referred to in (i)), if anyplus
(iv) plus (D) if with respect to any Unrestricted Subsidiary that is redesignated as a Restricted SubsidiarySubsidiary after the Closing Date in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after the Closing Date, and only to the lesser extent not included in the calculation of Consolidated Net Income referred to in (1) i)), an amount equal to the fair market value lesser of (x) the proportionate interest of the Investments previously made by Company or any Restricted Subsidiary in an amount equal to the Company excess of (I) the total assets of such Unrestricted Subsidiary, valued on an aggregate basis at the lesser of book value and its Restricted Subsidiaries Fair Market Value thereof, over (II) the total liabilities of such Unrestricted Subsidiary, determined in such Subsidiary as of the date of redesignation accordance with GAAP, and (2y) the amount Designation Amount at the time of such Investments. The foregoing provisions will not prohibit Unrestricted Subsidiary’s designation as an Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the Company, ▇▇▇▇ Corp. and any of Restricted Subsidiary may make, or agree to pay or make, the followingfollowing Restricted Payments:
(ai) the payment of any dividend or redemption of any Equity Interests or Subordinated Indebtedness within 60 days after the date of declaration thereof if or call for redemption if, at said such date of declaration or call for redemption, such payment would have complied with or redemption was permitted by the provisions of this Indenturethe preceding paragraph as of the date of declaration and the payment itself will be deemed to have been paid on such date of declaration);
(bii) any Restricted Payment made in exchange for, or out of the net proceeds of the substantially concurrent sale of, Qualified Equity Interests;
(iii) the purchase, repayment, redemption, repurchase, retirement, defeasance or other acquisition or retirement for value by the Company of any subordinated Subordinated Indebtedness of the Company Company, ▇▇▇▇ Corp. or any Guarantor Restricted Subsidiary in exchange for, or out of proceeds of, Refinancing Indebtedness incurred as permitted by and in compliance with Section 6.01;
(iv) Restricted Investments after the Closing Date not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $10,000,000;
(v) Restricted Investments after the Closing Date in joint ventures not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $100,000,000; provided, however, that, at the time any such Investment is made, the net book value of the Company’s inventory (including “work-in-progress” inventory, land held for development and land held for sale) and cash securing the Obligations and any other Pari-Passu Lien Obligations is at least 275% of the aggregate principal amount of the Letters of Credit then outstanding plus the aggregate amount of such other Pari-Passu Lien Obligations;
(vi) Restricted Payments made after the Closing Date in respect of Specified Obligations not to exceed $70,000,000; provided, however, that such Restricted Payments may exceed $70,000,000 to the extent that the Company receives a cash equity contribution from JFSCI in the amount of such excess within 10 Business Days following such Restricted Payment;
(vii) Tax Distributions (other than payments with respect to Specified Obligations);
(viii) the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Company, ▇▇▇▇ Corp. or any Restricted Subsidiary with the proceeds of the offering of the Notes;
(ix) the declaration and payment of dividends to holders of any class or series of Disqualified Equity Interests of the Company or any of its Restricted Subsidiaries issued in exchange foraccordance with and to the extent permitted by Section 6.01; provided, however, that, at the time of payment of such dividend, no Default or out Event of the net cash proceeds of the substantially concurrent sale Default shall have occurred and be continuing (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockor result therefrom); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(ex) repurchases of Equity Interests deemed to occur upon exercise of stock options, equity options or warrants if such Equity Interests represent a portion of the exercise price of such stock optionsoptions or warrants;
(fxi) so long Restricted Payments that are made with cash or Cash Equivalents received by the Company as no Default has occurred and is continuing, capital contributions to its equity or from the repurchase issuance or other acquisition for value sale of any Qualified Equity Interests of the Company or any Restricted Subsidiary of Company, in each case, after the Company for allocation (Closing Date and are designated at such time as a free allocation or otherwise) an “Excluded Contribution” pursuant to directors, officers and employees of an officer’s certificate delivered by the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month periodCompany;
(gxii) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests Subordinated Indebtedness pursuant to Section 6.04; provided, however, that all Notes tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer (each, as defined in the Company Indenture), as applicable, have been purchased, redeemed, defeased or acquired for value; or
(xiii) Restricted Investments after the Closing Date in joint ventures (other than amounts expended in respect of Specified Obligations) in an amount not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $70,000,000 (the “JV Payment Basket”); provided that, for purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company, ▇▇▇▇ Corp. or any Restricted Subsidiary in respect of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchasedguarantee, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiarydeducted.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Vistancia Marketing, LLC)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iiiiv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iii) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof3.3(a) above; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (vi), (vii), (viii) and (gix) of the next succeeding paragraph), and (ySection 3.4(b) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisbelow), is less than the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of first the fiscal quarter following the Issue Date commencing October 1, 2004 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B) 100% of the aggregate of Net Cash Proceeds received by the Company (1) the net cash proceeds and (2) including the fair market value of Strategic any Additional Assets transferred or conveyed to the extent acquired in consideration of Equity Interests of the Company (as valued at the time of transfer or conveyance to the Companyother than Disqualified Stock)) since October 7, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date 2009 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or (other than Net Cash Proceeds received from the an issuance or sale of Disqualified such Capital Stock or debt securities to a Subsidiary of the Company that or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan, option plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been converted into, repaid with cash on or exchanged prior to the date of determination); plus
(C) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or redeemed for, such Equity Interests exchange (other than by a Subsidiary of the Company) subsequent to October 7, 2009 of any Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or other property, distributed by the Company upon such Equity Interestsconversion or exchange); plus
(D) the amount equal to the net reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from:
(1) repurchases or redemptions of such Restricted Investments by such Person, Disqualified Stock or convertible debt securities sold proceeds realized upon the sale of such Restricted Investment to a purchaser other than the Company or a Subsidiary, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoCompany; or
(2) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, or exchanged or redeemed for, Disqualified Stock), plus (C) to in the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return case of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser amount of (1) an amount equal to the fair market value of the Investments previously made by the Company and its or any Restricted Subsidiaries Subsidiary in such Subsidiary as Unrestricted Subsidiary, which amount in each case under this clause (D) was included in the calculation of the date of redesignation and (2) the amount of such Investments. The foregoing Restricted Payments; provided, however, that no amount will be included under this clause (D) to the extent it is already included in Consolidated Net Income.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit any of the followingprohibit:
(ai) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, or a redemption payment after the giving of an irrevocable notice of redemption, if at said the date of declaration such the dividend payment or redemption payment would have complied with the provisions of this Indenture;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Subordinate Obligations of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that (a) such purchase or redemption will be excluded in subsequent calculations of the amount of Restricted Payments and (b) the Net Cash Proceeds from such sale will be excluded from clause (iii)(B) of Section 3.4(a);
(iii) any defeasance, retirement, purchase, redemption or other acquisition of Subordinated Obligations of the Company or any Guarantor, as the case may be, made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests Subordinated Obligations of the Company (other than or any Disqualified Stock); Subsidiary Guarantor, as the case may be, that qualify as Permitted Refinancing Indebtedness, provided that the amount of any obligors on such net cash proceeds new Subordinated Obligations shall not include obligors that are utilized for any were not obligors on the Subordinated Obligations being defeased, retired, repurchased, redeemed or acquired; provided, however, that such redemptiondefeasance, retirement, purchase, retirementredemption or acquisition will be excluded in subsequent calculations of the amount of Restricted Payments;
(iv) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition shall be excluded from clause (c)(B) or retirement of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness Subordinated Obligations of the Company or any Guarantor Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest therein; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer with respect to the net cash proceeds from an incurrence ofNotes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, or however, that such repurchase and other acquisitions shall be included in exchange for, Permitted Refinancing Indebtednessthe calculation of the amount of Restricted Payments;
(dv) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to the covenant described under Section 3.7 hereof, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes pursuant to the provisions of the covenant described under Section 3.7 hereof; provided further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted Payments);
(vi) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a pro rata basis;
(evii) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member current or former director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management director or employee equity subscription agreement or plan, stock option agreement in effect as of the Issue Dateor similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €$1,000,000 in any twelve-month period; provided, that such payments will be excluded from any subsequent calculation of the amounts of Restricted Payments; provided further, that such agreement amount in any twelve-month period may be increased in an amount not to exceed (a) the cash proceeds from the issue or sale of Equity Interests (other than Disqualified Stock) to any such repurchaseofficers, redemption directors, employees or other acquisition consultants that occurs after the Issue Date to the extent proceeds from the issue or retirement sale of such Equity Interests have not otherwise been applied to make Restricted Payments plus (b) the cash proceeds of key man life insurance received by the Company or its Restricted Subsidiaries after the agreement are approved by a majority of the disinterested members of the Board of DirectorsIssue Date;
(hviii) loans or advances in the ordinary course acquisition of business to Affiliates or Persons with which Equity Interests by the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of stock options or stock appreciation rights by way of cashless exercise;
(ix) the Company or a Subsidiary payment of cash in such jurisdiction and lieu of fractional shares of Capital Stock in a form that is customary to address foreign investment regulation or practice in such jurisdiction, connection with any transaction otherwise permitted under this covenant; and
(x) other Restricted Payments in an aggregate amount since the date of this Indenture not to exceed $7,500,000 outstanding at any one time;25,000,000.
(ic) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined (i) in good faith by senior management of the manner contemplated Company and (ii) if the fair market value exceeds $10,000,000, by the definition Board of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeDirectors.
Appears in 1 contract
Sources: Indenture (TexCal Energy (LP) LLC)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i) purchase, redeem declare or otherwise acquire or retire for value (including, without limitation, in connection with pay any merger or consolidation involving the Company) any Equity Interests of the Company dividend or any of its Restricted Subsidiaries (other than any such Equity Interests owned by distribution or payment on or with respect to the Company or any of its Restricted Subsidiaries); ’ Capital Stock other than dividends or distributions payable solely in the Company’s Equity Interests, other than Disqualified Stock, and other than dividends paid to the Company or a Restricted Subsidiary;
(ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any of the Company’s or its Restricted Subsidiaries’ Capital Stock, other than any Capital Stock owned by the Company or a Wholly Owned Restricted Subsidiary of the Company;
(iii) make any principal payment on, or purchase, defease, repurchase, redeem or otherwise acquire or retire for value, prior to any scheduled maturity, scheduled repayment, scheduled sinking fund payment or other stated maturity, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as other than any such Indebtedness owned by the case may be, except Company or a payment of interest or principal at Stated MaturityWholly Owned Restricted Subsidiary; or or
(iiiiv) make any Restricted Investment, other than a Permitted Investment (a “Restricted Investment”), all such payments and other actions set forth in these clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”), ;” unless, at the time of and after giving effect to such the proposed Restricted Payment:
(a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(c) such Restricted Payment, together with (x3) the aggregate amount of that Restricted Payment and all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (date hereof, excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (f) and iii), (g) of the next succeeding paragraphiv), (vi), (vii), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stockviii) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisSection 4.07(b), is less than or equal to the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Company’s Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date October 1, 2006 to the end of the Company’s most recently ended fiscal quarter for which internal the Company has filed financial statements are available at with the time of such Restricted Payment SEC (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(B) 100% of (i) the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date hereof as a contribution to its the Company’s common equity capital or from the issue or sale (other than to a Subsidiary) of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (other than Disqualified Stock), (ii) the amount by which Indebtedness of the Company or its Restricted Subsidiaries incurred since the date hereof is reduced on the Company’s consolidated balance sheet as a result of the conversion or exchange (other than by a Subsidiary) after the date of this Indenture of the Company’s convertible or exchangeable Disqualified Stock or the Company’s convertible or exchangeable Indebtedness that has been converted into or exchanged for Equity Interests (other than Disqualified Stock) or from (iii) the issuance fair market value (as determined in good faith by the Company’s Board of Directors) of any assets or sale of Disqualified Stock or debt securities of property received (including Capital Stock) by the Company that have been converted into, or exchanged or redeemed for, such Equity Interests after the date of this Indenture in exchange (other than any such Equity Interests, Disqualified from a Subsidiary) for the Company’s Capital Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and (other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus plus
(C) to the extent that any Restricted Investment that was made the Company or any of its Restricted Subsidiaries makes after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cashrepaid, an amount equal to the lesser of (i) the amount of cash return or the fair market value of capital the property or assets received with respect to any such Restricted Investment (less the cost of disposition, if any) plus and (ii) the initial amount of such Restricted Investment, plus
(D) if to the extent that any Unrestricted Subsidiary designated as such after the date hereof is redesignated as a Restricted Subsidiary, an amount equal to the lesser of (1i) an amount equal to the net book value of the Company’s Restricted Investment in the Unrestricted Subsidiary at the time the Unrestricted Subsidiary was designated as such and (ii) the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances Investment in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07redesignation. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash assets or securities that are required to be valued by this Section in excess of $10.0 million will be determined by the Company’s Board of Directors. The determination of the Board of Directors of the Company must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $20.0 million. Not later than the date of making any Restricted Payment shall be determined in reliance on clause (3) of this Section 4.07 or Section 4.07(b)(x) below, the manner contemplated by Company will deliver to the definition of the term “fair market value,” and the results of such determination shall be evidenced by Trustee an Officers’ Certificate delivered stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
(b) The foregoing provisions will not prohibit:
(i) the payment of any dividend or distribution within 60 days after the date of its declaration if, at the date of declaration, the payment would be permitted as summarized above;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any of (A) the Company’s Indebtedness or any Indebtedness of any Guarantor that is subordinated to the TrusteeNotes or the Subsidiary Guarantees, or (B) the Company’s Equity Interests or any Equity Interests of any of the Company’s Restricted Subsidiaries, in either case in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to one of the Company’s Subsidiaries) of, the Company’s Equity Interests (other than Disqualified Stock); provided, however, that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (3)(B) of Section 4.07(a);
(iii) the defeasance, redemption, repurchase or other acquisition of the Company’s Indebtedness or Indebtedness of any Guarantor that is subordinated to the Notes or the Subsidiary Guarantees with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) (A) the payment of any dividend by any of the Company’s Restricted Subsidiaries to the holders of that Restricted Subsidiary’s Equity Interests on a pro rata basis so long as the Company or one of its Restricted Subsidiaries receives at least a pro rata share (and in like form) of the dividend or distribution in accordance with its Equity Interests of the relevant class; or (B) the payment of any dividends on Capital Stock that is included in the definition of Indebtedness that was issued in compliance with Section 4.09;
(v) the repurchase, redemption or other acquisition or retirement for value of any of the Company’s or any of the its Restricted Subsidiaries’ Equity Interests held by any member of the Company’s or any of its Restricted Subsidiaries’ management pursuant to any management equity subscription agreement, stock option agreement or similar agreement, provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $2.5 million in any twelve-month period;
(vi) upon the occurrence of a Change of Control or an Asset Sale and within 60 days after the completion of any required offer to repurchase the Notes under Section 4.15 or Section 4.16 (including the purchase of all Notes tendered), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of subordinated Indebtedness required under the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any, provided that, in the notice to holders of Notes relating to a Change of Control hereunder, the Company shall describe any offer to be made pursuant to this Section 4.07(b)(vi);
(vii) the purchase by the Company of fractional shares arising out of stock dividends, splits or combinations or business combinations;
(viii) repurchases of Equity Interests 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 or the payment of withholding taxes through the issuance of Equity Interests; or
(ix) the acquisition in open-market purchases of the Company’s common Equity Interests for matching contributions to the Company’s employee stock purchase and deferred compensation plans in the ordinary course of business and consistent with past practices; or
(x) other Restricted Payments in an aggregate amount since the date hereof not to exceed $25.0 million; provided that, with respect to subsections (b)(iv), (v), (vi), (ix) and (x) of this Section 4.07(b), no Default or Event of Default shall have occurred and be continuing immediately after such transaction.
Appears in 1 contract
Restricted Payments. The Company Borrower shall not, and shall not permit allow any of its Restricted Subsidiaries to, directly declare or indirectlymake any dividend payment or other distribution of assets, (i) properties, cash, rights, obligations or securities on account of any shares of any class of its Equity Interests, or purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) shares of any class of its Equity Interests of the Company or any of its Restricted Subsidiaries (other than any warrants, rights or options to acquire such Equity Interests owned by the Company shares, now or any of its Restricted Subsidiaries); (ii) make any payment on or with respect tohereafter outstanding, or directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, defease retire or otherwise acquire or retire for valueacquire, any Indebtedness described in Section 7.04(i), or Section 7.04(j) (collectively, "Restricted Payments"), except that is subordinated in right of payment (a) any Subsidiary may pay dividends and tax sharing payments to the Notes or corporations which own its Equity Interest, (b) the Subsidiary GuaranteesBorrower may, so long as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of before and after giving effect to any such payment no Event of Default or Default shall have occurred, make (i) Restricted Payment:
Payments with FIS Recapitalization Proceeds (excluding the FIS Recapitalization Distribution) after the Third Amendment Closing Date, together with Investments made with Recapitalization Proceeds permitted pursuant to Section 7.03(h), not to exceed $900,000,000 in aggregate amount and (ii) the FIS Recapitalization Distribution, and (c) the Borrower may, so long as before and after giving effect to any such payment no Event of Default or Default shall have occurred, at any time that the Borrower's Debt Rating is Investment Grade by either S&P or Moody's, make Restricted Payments in addition to those permitted ▇▇▇▇▇▇nt to clause (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) above; provided, however, if at any time during any Fiscal Year the Company wouldBorrower's Debt Rating is not Investment Grade Rating by both S&P and Moody's, at the Borrower may not make any such additional Restricte▇ ▇▇▇▇▇nts during such time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) that would cause the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, during such Fiscal Year to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50exceed 10% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary Worth as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any last day of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the immediately preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month periodFiscal Year; provided, further, however, that such agreement if no Default exists or such repurchasewould result therefrom, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances Borrower shall be entitled to make additional Restricted Payments in the ordinary course of business to Affiliates or Persons with which the Company or immediately following Fiscal Year only and not on a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationcumulative basis, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed Payments permitted to be transferred or issued by made for the Company or preceding Fiscal Year which were not made during such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeFiscal Year.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Financial Inc /De/)
Restricted Payments. The Company shall not, not and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment to holders of the Company’s Equity Interests in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSecurities, except a payment of interest or principal at Stated Maturityfinal maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (5) and (g6) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplicationi) the dollar amount calculated as of the date of this Indenture under Section 4.07(c) of that certain Indenture dated July 21, 2003 among the following: Company, the Subsidiary Guarantors and J.▇. ▇▇▇▇▇▇ Trust Company, National Association as successor trustee to Bank One, National Association, plus (Aii) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing prior to the Issue Date date of this Indenture to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Biii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or and sale since the date of this Indenture of Equity Interests of in the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Disqualified Stock Interests (or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (iv) 100% of the amount of net cash proceeds received by the Company or a Restricted Subsidiary from the sale within 12 months of the related acquisition of any of the following that are acquired after the date of the Indenture in exchange for Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued to a Subsidiary of the Company): (A) any property or assets (other than Indebtedness and Capital Stock); (B) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (C) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary, plus (v) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1A) an amount equal to the fair market value net proceeds of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation sale, liquidation or repayment and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will shall not prohibit any of the following:
(a1) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (b2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(Bc) (iii) or (c)(iv) of the preceding paragraph;
; (c3) the defeasance, redemption, purchase, retirement redemption or other acquisition repurchase of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
Debt or the substantially concurrent sale (d) the payment of any dividend or distribution by other than to a Restricted Subsidiary of the Company to the Company or any Company) of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or any Restricted Subsidiary other acquisition shall be excluded from clause (c) (iii) or (c)(iv) of the Company for allocation preceding paragraph; (as a free allocation or otherwise4) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management employees pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Datedate of this Indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $2.0 million in any twelve-month period; provided, further, and provided further that no Default or Event of Default shall have occurred and be continuing immediately after such agreement or transaction; (5) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and (6) cash payments made by the Company for the repurchase, redemption or other acquisition or retirement of the Company’s 73/8% Senior Subordinated Notes due 2013 or 63/8% Senior Subordinated Notes due 2015. The amount of all Restricted Payments (other than cash) shall be the agreement are approved fair market value (as determined in good faith by a majority of the disinterested members resolution of the Board of Directors;
(hDirectors of the Company set forth in an Officers’ Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with this provision) loans or advances in on the ordinary course date of business the Restricted Payment of the asset(s) proposed to Affiliates or Persons with which be transferred by the Company or a Subsidiary the applicable Restricted Subsidiary, as the case may have contractual arrangements in any jurisdiction be, pursuant to the extent Restricted Payment. Not later than five days after the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers’ Certificate stating that such loans or advances Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed. In computing Consolidated Net Income for purposes of this Section 4.07, (i) the Company shall use audited financial statements for the portion of the relevant period for which audited financial statements are reasonably necessary to be made in connection with conducting available on the business date of determination and unaudited financial statements and other current financial data based on the books and records of the Company or a Subsidiary for the remaining portion of such period and (ii) the Company shall be permitted to rely in such jurisdiction good faith on the financial statements and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred other financial data derived from the books and is continuing, advances constituting Investment or loans to directors, officers and employees records of the Company and its that are available on the date of determination. If the Company makes a Restricted Subsidiaries Payment which, at the time of the making of such Restricted Payment, would on the good faith determination of the Company be permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the ordinary course Company’s financial statements affecting Consolidated Net Income of business the Company for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Stepsperiod. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be a Restricted Payments Investment or, if applicable, a Permitted Investment at the time of such designation, designation and must comply with this Section 4.07. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the greater of the fair market value or the book value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Sources: Indenture (Range Energy I Inc)
Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution(s) on shares of the Company's Capital Stock to holders of such Capital Stock (other than dividends or distributions payable solely in shares of Capital Stock (other than Disqualified Capital Stock)), (iii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Capital Stock of the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries , (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iiiii) make any principal payment on or with respect toon, or purchase, defease, redeem, defease or otherwise acquire or retire for value, value any Indebtedness of the Company that is subordinated subordinate in right of payment to the Notes or the Subsidiary GuaranteesNotes, as the case may be, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other than Permitted Investments) (each of the foregoing prohibited actions set forth in clauses (i) through ), (ii), (iii) above and (iv) being collectively referred to as “Restricted Payments”a "RESTRICTED PAYMENT"), unless, if at the time of and such proposed Restricted Payment or immediately after giving effect to such Restricted Payment:
thereto, (a) no a Default or an Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;
result therefrom, or (b) the Company wouldis not, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodor would not be, have been permitted able to incur at least $1.00 of additional Indebtedness pursuant under the Debt to the Consolidated Interest Coverage Cash Flow Ratio test set forth in Section 4.09 hereof; and
or (c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after subsequent to the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fw) and (gx) of below) exceeds or would exceed the next succeeding paragraph), and sum of: (y1) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: difference between (A) 50% of the cumulative Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time date of such Restricted Payment since the Issue Date, minus (or, if such B) the product of 1.75 times cumulative Consolidated Net Income for such period is a deficit, less 100% Interest Expense of the Company as of the date of such deficit)Restricted Payment since the Issue Date, plus PLUS (B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.proceeds
Appears in 1 contract
Sources: Indenture (Coinstar Inc)
Restricted Payments. The From and after the date hereof the Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is pari passu with or subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be(other than Notes), except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereofthe first paragraph of the covenant described below under caption "--Incurrence of Indebtedness and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of the Indenture (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fii) and (giii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of the Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with 42 51 respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (Div) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made such redesignated Subsidiary (as determined in good faith by the Company and its Restricted Subsidiaries in such Subsidiary Board of Directors) as of the date of its redesignation and or (2B) pays any cash dividends or cash distributions to the amount Company or any of its Restricted Subsidiaries, 50% of any such Investmentscash dividends or cash distributions made after the date of the Indenture. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this the Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of pari passu or subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) Investments in any Person (other than the Company or any of its a Wholly-Owned Restricted Subsidiaries;
Subsidiary) engaged in a Permitted Business in an amount taken together with all other Investments made pursuant to this clause (ev) repurchases of Equity Interests deemed that are at that time outstanding not to occur upon exercise of stock optionsexceed $5.0 million; (vi) other Investments in Unrestricted Subsidiaries having an aggregate fair market value, if such Equity Interests represent a portion taken together with all other Investments made pursuant to this clause (vi) that are at that time outstanding, not to exceed $2.0 million; (vii) payments to Holdings or Holb▇▇▇ ▇▇▇suant to the tax sharing agreement among Holb▇▇▇ ▇▇▇ other members of the exercise price affiliated corporations of such which Holb▇▇▇ ▇▇ the common parent; (viii) the designation of certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately prior to the date of the Indenture; (ix) the payment of a one-time dividend or distribution by the Company to pay fees, expenses, commissions and discounts in connection with the offering by Holdings of debt securities used to finance the Preferred Stock Contribution; (x) the redemption in connection with the Transactions of the preferred stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation held by Holb▇▇▇; (as a free allocation or otherwise▇i) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Holdings or any Restricted Subsidiary of the Company held by any member of Holdings' or the Company’s 's (or any of its their Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement or in effect as connection with the termination of employment of any employees or management of Holdings or the Issue DateCompany or their Subsidiaries; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $2.0 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement the aggregate plus the aggregate cash proceeds received by Holdings or the agreement are approved by a majority Company after the date of the disinterested Indenture from any reissuance of Equity Interests by Holdings or the Company to members of the Board management of Directors;
(h) loans Holdings or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, their Restricted Subsidiaries; and (xii) other Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps10.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at Default; provided that in no event shall the business currently operated by any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to Guarantor be transferred to or issued held by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.an
Appears in 1 contract
Sources: Indenture (Standard Parking Ii LLC)
Restricted Payments. The Company shall will not, and shall not nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly declare or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;that:
(i) so long as no Default has or Unmatured Default shall have occurred and is continuingbe continuing at the date of declaration or payment thereof (in the case of any dividend) or the date of such repurchase (in the case of any share repurchase) or would result therefrom, advances constituting Investment or loans the Company may declare and pay cash dividends with respect to directors, officers its Capital Stock and employees repurchase shares of Capital Stock of the Company and in accordance with its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal future share repurchase program to the fair market value extent the sum of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments dividends and the aggregate purchase price of such repurchases shall be reduced by not exceed $40,000,000 in any fiscal year of the lesser of Company;
(aii) an amount equal in addition to the fair market value foregoing, so long as no Default or Unmatured Default shall have occurred and be continuing as of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such repurchase or would result therefrom, the Restricted Payment Company may repurchase shares of Capital Stock of the asset(sCompany in accordance with the Company’s future share repurchase program in order to limit dilution thereof to the extent the aggregate purchase price with respect to such repurchases shall not exceed $25,000,000 during the term of this Agreement;
(iii) or securities proposed to be transferred or issued by the Company shall be permitted to repurchase, retire, redeem or such Restricted Subsidiary, as defease any Indebtedness of the case may be, pursuant to Company permitted under the Restricted Payment. The fair market value Credit Agreement other than subordinated Indebtedness with proceeds of any non-cash Restricted Payment shall be determined in permitted capital markets debt, convertible debt, equity or preferred equity issuances (but, for the manner contemplated by avoidance of doubt, not with proceeds of any Loans under the definition of Credit Agreement) within one hundred twenty (120) days after the term “fair market value,” and the results Company’s receipt of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.proceeds;
Appears in 1 contract
Sources: Credit Agreement (Meritor Inc)
Restricted Payments. The Company shall not, and nor shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchasedeclare, redeem order, pay, make or otherwise acquire or retire set apart any sum for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company except for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) (i) Restricted Payments by any Subsidiary of the payment Company to any Loan Party and (ii) Restricted Payments by a non-Wholly-Owned Subsidiary of the Company to its shareholders generally so long as the Company or any dividend within 60 days after Subsidiary which owns the date equity interest or interests in the non-Wholly-Owned Subsidiary paying such dividends receives at least its proportionate share thereof (based on its relative holdings of declaration thereof equity interests in the non-Wholly-Owned Subsidiary paying such dividends and taking into account the relative preferences, if at said date any, of declaration the various classes of equity interests in such payment would have complied with the provisions of this IndentureSubsidiary);
(b) dividends and distributions declared and paid on the redemptioncommon Stock of the Company and payable only in common Stock of the Company;
(c) cash dividends on the Stock of the Company to Holdings paid and declared in any Fiscal Year solely for the purpose of funding the following:
(i) ordinary operating expenses of Holdings not in excess of $4,000,000 in the aggregate in any Fiscal Year;
(ii) reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of the Company and its Subsidiaries;
(iii) payments by Holdings in respect of foreign, federal, state or local taxes owing by Holdings in respect of the Company and its Subsidiaries, but not greater than the amount that would be payable by the Company and its Subsidiaries, on a consolidated, combined or unitary basis;
(iv) the Restricted Payments permitted to be made by Holdings under clause (g) below;
(v) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; and
(vi) management fees permitted to be paid under Section 8.8(d) (Transactions with Affiliates);
(d) Restricted Payments by the Company to pay (or make Restricted Payments to allow the Holdings to pay) for the repurchase, retirement, defeasance retirement or other acquisition or retirement for value of common Stock of the Company or Holdings held by any future, present or former employee, director or consultant of the Company, Holdings or any of their Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or may make Restricted Payments in respect of SARs; provided, however, that the aggregate amount of Restricted Payments made under this clause (d) does not exceed in any calendar year $10,000,000 (with unused amounts in any calendar year being permitted to be carried over to the two succeeding calendar years); 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 Stock (other than Disqualified Stock) to members of management, directors or consultants of Holdings or its Subsidiaries that occurs after the Closing Date plus (ii) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings or any of its Subsidiaries in connection with the Transactions that are foregone in return for the receipt of Stock of the Company or Holdings pursuant to a deferred compensation plan plus (iii) the cash proceeds of key man life insurance policies received by Holdings, the Company or its Subsidiaries after the Closing Date (provided, that Holdings may elect to apply all or any portion of the aggregate increase contemplated by clauses (i), (ii) and (iii) above in any calendar year) less (iv) the amount of any Restricted Payments previously made pursuant to clauses (i), (ii) and (iii) above;
(e) Restricted Payments of up to (i) in the event the Net Senior Secured Leverage Ratio is equal to or less than 1.5 to 1.0, but greater than 1.0 to 1.0, 25%, (ii) in the event the Net Senior Secured Leverage Ratio is equal to or less than 1.0 to 1.0, but greater than 0.75 to 1.0, 50% and (iii) in the event the Net Senior Secured Leverage Ratio is equal to or less than 0.75 to 1.0, 75% of the aggregate amount of Net Cash Proceeds received during the Fiscal Year immediately preceding such Restricted Payment, from all Asset Sales consummated during such Fiscal Year under Section 8.4(g) (Sale of Assets) to the extent such Net Cash Proceeds are not required to prepay the Loans under Section 2.9(a)(i)(A) (Mandatory Prepayments);
(f) (i) the repurchase of Stock or Subordinated Debt, if such repurchase is completed through the issuance of Stock or new Permitted Subordinated Indebtedness, (ii) regularly scheduled or otherwise required repayments or redemptions of Subordinated Debt and (iii) renewals, extensions, refinancings and refundings of Subordinated Debt, as long as such renewal, extension, refinancing or refunding is permitted under Section 8.1 (Indebtedness);
(g) the repurchase of company granted stock awards or options necessary to satisfy obligations attributable to tax withholding; and
(h) Restricted Payments not otherwise permitted under this Section 8.5; provided, however, that the aggregate amount of all such Restricted Payments, together with the aggregate amount of all Investments made under Section 8.3(k), shall not exceed (i) $200,000,000 plus (ii) the Available Amount plus (iii) any redemption, prepayment, defeasance, repurchase or other satisfaction prior to the scheduled maturity of any subordinated Indebtedness of the Company or any Guarantor of its Subsidiaries in an aggregate principal amount of up to $600,000,000 to the extent the Company has redeemed, prepaid, defeased, repurchased or otherwise satisfied, as applicable, such Indebtedness pursuant to the terms thereof on or prior to April 30, 2007. provided, however, that the Restricted Payments described in clauses (c) through (h) above shall not be permitted if either (A) an Event of Default or Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom or (B) such Restricted Payment is prohibited under the terms of any Equity Interests Indebtedness (other than the Obligations) of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Restricted Payments. The Company shall notDeclare or make, and shall not permit any of its Restricted Subsidiaries toor agree to pay or make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the followingexcept:
(a) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, thereof if if, at said the date of declaration or notice, such payment would have complied with the provisions of be permitted under this IndentureSection 7.6;
(b) the defeasance, redemption, repurchase, retirement, defeasance repurchase or other acquisition acquisition, retirement or repayment of Subordinated Debt with the Net Cash Proceeds from a substantially concurrent (with any subordinated Indebtedness offering within 45 days deemed as substantially concurrent) (i) incurrence of Subordinated Debt or (ii) offering of Qualified Capital Stock or contribution of common equity of the Company Parent or any Guarantor Restricted Subsidiary;
(c) the Parent may redeem, repurchase or any Equity Interests otherwise acquire or retire its Capital Stock held by current officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates or their immediate family members), of the Company Parent or any of its Restricted Subsidiaries in exchange forupon death, disability, retirement, severance or out termination of employment or pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement under which the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock)Capital Stock were issued; provided that the aggregate cash consideration paid therefor in any calendar year after the Closing Date does not exceed an aggregate amount of any such net cash proceeds that are utilized for any the greater of (x) $5,000,000 and (y) 0.375% of Consolidated Net Tangible Assets (determined at the time of such redemption, purchaserepurchase, acquisition or retirement, defeasance ) (with unused amounts in any calendar year being permitted to be carried over for the two succeeding calendar years); and provided further that the amount in any calendar year may be increased by an amount not to exceed the sum of (i) cash proceeds received by the Parent or other acquisition shall be excluded any of its Restricted Subsidiaries from clause (c)(B) the sale of Qualified Capital Stock of the preceding paragraph;
Parent to officers, directors or employees of the Parent and its Restricted Subsidiaries after the Closing Date and (cii) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtednessof key man life insurance policies received by the Parent and its Restricted Subsidiaries after the Closing Date;
(d) the payment cash payments in lieu of any dividend fractional shares upon exercise of options or distribution by a Restricted Subsidiary warrants or conversion or exchange of the Company to the Company convertible or any of its Restricted Subsidiaries;
(e) exchangeable securities, repurchases of Equity Interests Capital Stock deemed to occur upon the exercise of stock options, if warrants or convertible securities to the extent such Equity Interests securities represent a portion of the exercise price thereof and repurchases of Capital Stock in connection with the withholding of a portion of the Capital Stock granted or awarded to a director or employee to pay for the taxes payable by such director or employee upon such grant or award;
(e) the declaration and payment of regularly scheduled or accrued dividends or distributions to the holders of any class or series of Disqualified Capital Stock or preferred stock optionsof the Parent or any Restricted Subsidiary;
(f) so long as no Default has occurred and is continuingdividends or distributions by a Restricted Subsidiary, on a pro rata basis or on a basis more favorable to the repurchase or other acquisition for value of any Equity Interests of the Company Parent or any other Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month periodSubsidiary;
(g) so long mandatory redemptions of Disqualified Capital Stock issued as no Default has occurred and is continuing, the repurchase, redemption a Restricted Payment permitted under this Section 7.6 or other acquisition or retirement as consideration for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Datean Investment permitted under Section 7.8; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;and
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not otherwise permitted under this Section 7.6 so long as immediately before and after giving Pro Forma Effect to exceed $15,000,000 any such Restricted Payment, (i) no Default shall have occurred and be continuing and (ii) the Parent is in the aggregate; and
(k) Investments in connection compliance with the Permitted Closing Steps. The Board covenants set forth in Section 7.1 (as evidenced by a certificate from the chief financial officer of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if the Parent demonstrating such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Statuscalculation in reasonable detail). For purposes of making such designation; provided, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designationhowever, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary made pursuant to this clause (h) during any Fiscal Year or partial Fiscal Year as the terms Consolidated Net Leverage Ratio as so calculated on a Pro Forma Basis for the most recent four Fiscal Quarters equals or exceeds (A) from the Closing Date through and including December 30, 2020, 3.50 to 1.00 or (B) on and after December 31, 2020, 3.25:1.00, shall not exceed the greater of this paragraph, then (x) $50,000,000 and (y) 3.5% of Consolidated Net Tangible Assets (determined at the aggregate amount time of such Restricted Payments shall be reduced by the lesser of (aPayment) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in for such Unrestricted Subsidiary at the Fiscal Year or partial Fiscal Year until such time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of Consolidated Net Leverage Ratio as so calculated on a Pro Forma Basis no longer equals or exceeds such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteeratios.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (SunCoke Energy, Inc.)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Senior Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; (iv) pay fees pursuant to, or make any other distribution in respect of, the Management Agreement; or (iiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries on or after the Issue Date date hereof (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (v) and or (gvi) of the next succeeding paragraph), paragraph and (y) excluding any Restricted Payment made on the aggregate amount of all dividends and other payments or distributions paid subsequent to date hereof directly by the Issue Date on account Company with the proceeds of the Company’s or any Offering in an amount not to exceed the amount set forth in the Offering Memorandum under the caption "Use of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisProceeds"), is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date hereof to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date hereof of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
hereof; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) (ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) payments by the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion Subsidiary of the exercise price of Company, directly or indirectly, to NES Group, Inc. to satisfy tax obligations, in accordance with the Tax Payment Agreement as in effect on the date hereof; provided that such stock options;
amounts do not exceed the amounts that, without recognizing any tax loss carry forwards or carry backs, would otherwise be due and owing if the Company and its Subsidiaries were an independent, individual taxpayer; and (fvi) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value Event of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuingcontinuing or would occur as a result thereof, the repurchase, redemption or other acquisition or retirement for value payment of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management fees pursuant to any management equity subscription agreement or stock option agreement the Management Agreement, as in effect as of on the Issue Datedate hereof; provided that the aggregate price amount of fees paid for all such repurchased, redeemed, acquired or retired Equity Interests pursuant to the Management Agreement in any calendar year shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes five percent of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraphCompany's earnings before, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of interest, taxes, depreciation, amortization and miscellaneous expenses (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07income). The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (Goodman Conveyor Co)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment Payment if (all such payments and other actions set forth in clauses (ia) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such proposed Restricted Payment:
(a) no , a Default or Event of Default shall have occurred and be continuing or would shall occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and or (b) immediately after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments that shall have been made by the Company and its Restricted Subsidiaries on or after the Issue Date would exceed the sum of (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than duplication):
(i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company$25.0 million, plus
(ii) dividends or distributions payable an amount equal to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: difference between (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus Cumulative Cash Flow Credit and (B) 1.2 multiplied by Cumulative Interest Expense, plus
(iii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition 70% of the term “fair market value”), in each case Fair Market Value of the aggregate non-cash net proceeds received by the Company since either (x) as capital contributions to the Company after the Issue Date as or (y) from the issue and sale (other than to a contribution to its common equity capital Restricted Subsidiary) of, or from the exercise of any options, warrants or other rights to acquire its, Capital Stock (other than Redeemable Capital Stock and other than net proceeds from the issue or and sale of Equity Interests Capital Stock with respect to which Indebtedness is incurred pursuant to clause (viii) of Section 4.07 hereof after the Issue Date), plus
(iv) 100% of the aggregate net cash proceeds and 70% of the Fair Market Value of the aggregate non-cash net proceeds received by the Company or any Restricted Subsidiary after the Issue Date from the Incurrence of Indebtedness that has been converted into or exchanged for Capital Stock of the Company (other than Disqualified Redeemable Capital Stock). If the Company or any Restricted Subsidiary makes a Restricted Payment which, at the time of the making of such Restricted Payment, would in the good faith determination of the Company be permitted under the requirements of this Section 4.08, such Restricted Payment shall be deemed to have been made in compliance with this Section 4.08 notwithstanding any subsequent adjustments made in good faith to the Company's financial statements affecting Cumulative Cash Flow Credit or Cumulative Interest Expense for any period. The foregoing provisions shall not prohibit:
(i) the repurchase, redemption or from other acquisition of Capital Stock of the issuance Company, or sale the acquisition of Disqualified Stock or debt securities Indebtedness of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary is subordinated in right of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) payment to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cashDebentures, the cash return of capital with respect to such Restricted Investment (less the cost of dispositionin each case, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the a substantially concurrent sale offering (other than to a Restricted Subsidiary of the CompanySubsidiary) of, other Equity Interests Capital Stock of the Company (other than any Disqualified Redeemable Capital Stock); provided PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemptionrepurchase, purchase, retirement, defeasance redemption or other acquisition shall be excluded from clause (c)(Biii) of the preceding paragraphfirst paragraph of this Section 4.08;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(dii) the payment of any dividend or distribution by a Restricted Subsidiary on, or redemption of, Capital Stock within 60 days after the date of declaration of such dividend or distribution or the Company to giving of formal notice of such redemption if, at the Company date of such declaration or any giving of its Restricted Subsidiariessuch formal notice, such payment or redemption would comply with the foregoing provisions;
(eiii) repurchases of Equity Interests deemed to occur upon exercise of stock optionsthe redemption, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption defeasance or other acquisition or retirement for value of the Notes with the proceeds of Indebtedness Incurred in compliance with Section 4.07 hereof;
(iv) for so long as the Company or any Equity Interests Restricted Subsidiary is treated as a pass-through entity for United States federal income tax purposes, distributions to equity holders of the Company or any Restricted Subsidiary of in an amount not to exceed the Company held by any member of Tax Amount for such period;
(v) the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchasedredemption, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption defeasance or other acquisition or retirement or for value of Indebtedness that is subordinated in right of payment to the agreement are approved by a majority Debentures, including premium, if any, and accrued and unpaid interest, with the proceeds of Indebtedness Incurred under clause (vi) of the disinterested members second paragraph of the Board of DirectorsSection 4.07(a) hereof;
(hvi) loans any payment or advances distribution made by the Company or any Restricted Subsidiary in order to purchase, or fund the purchase by the Falcon Investors Partnership, if any, of the interests in the ordinary course Capital Stock of business the Company or the Falcon Investors Partnership, if any, held by any of the Group I Partners, the Group II Partners, the Group III Partners or the Group IV Partner (as such terms are defined in the Partnership Agreement as in effect on the Issue Date) pursuant to Affiliates the provisions of Article 15 of the Partnership Agreement (or pursuant to such modifications to such provisions as may be agreed to by the Company, the Falcon Investors Partnership, the Group I Partners, the Group II Partners, the Group III Partners or the Group IV Partner; PROVIDED no such modification shall result in such payment or distribution being made in either a larger amount or at an earlier date than as provided for in Article 15 of the Partnership Agreement as in effect on the Issue Date);
(vii) any purchase, redemption, acquisition, cancellation or other retirement for value of Capital Stock of the Company or any Restricted Subsidiary or any other transaction that is undertaken in connection with the consummation of the TCI Transaction and the other transactions contemplated under the Contribution Agreement;
(viii) the purchase, redemption, acquisition, cancellation or other retirement for value of Capital Stock of the Company, options on any such Capital Stock or related equity appreciation rights or similar securities held by officers or employees or former officers or employees of the Company, any Restricted Subsidiary (or their estates or beneficiaries under their estates), upon death, disability, retirement or termination of employment; PROVIDED that the aggregate consideration paid for such purchase, redemption, acquisition, cancellation or other retirement after the Issue Date does not in any one fiscal year of the Company exceed an aggregate amount of $7.5 million;
(ix) the payment of any dividend or distribution on Capital Stock of a Restricted Subsidiary out of such Restricted Subsidiary's net income from the Issue Date to Persons with which other than the Company or a Subsidiary may have contractual arrangements in Restricted Subsidiary; PROVIDED that such dividend or distribution is paid pro rata to all holders of such Capital Stock;
(x) any jurisdiction to the extent such loans payment or advances are reasonably necessary to be distribution made in connection with conducting the business of by the Company or a any Restricted Subsidiary in order to purchase or fund the purchase by the Company of the interests in the Capital Stock of FHGLP held by the non-management partners in FHGLP (including the partnership interest held by Belo Ventures, Inc.) pursuant to the provisions of Article 9 of the New FHGLP Partnership Agreement (or pursuant to such jurisdiction and in a form that is customary modifications to address foreign investment regulation such provisions as may be agreed to by the Company, New Falcon or practice such non-management partners; PROVIDED no such modification shall result in such jurisdiction, payment or distribution being made in either a larger amount or at an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long earlier date than as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees provided in Article 9 of the Company and its Restricted Subsidiaries New FHGLP Partnership Agreement as in effect on the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregateIssue Date); and
(kxi) Investments the distribution under the FHGLP 1993 Incentive Performance Plan, as amended, of amounts in connection with the Permitted Closing StepsTCI Transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationPROVIDED, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of each of clauses (i) through (xi) of this Section 4.08, no Default or Event of Default shall have occurred and be continuing or shall occur as a designationconsequence thereof. In determining the amount of Restricted Payments permissible under this covenant, the amounts expended pursuant to clauses (ii), (v), (viii) and with this Section 4.07(ix) of the immediately preceding paragraph shall be included as Restricted Payments. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in deemed to be equal to the manner contemplated by Fair Market Value thereof at the definition date of the term “fair market value,” and the results making of such determination Restricted Payment. Not later than the date of making any Restricted Payment, the Company shall be evidenced by deliver to the Trustee an Officers’ ' Certificate delivered to stating that such Restricted Payment is permitted and setting forth the Trusteebasis upon which the calculations required by this Section 4.08 were permitted.
Appears in 1 contract
Sources: Indenture (Falcon Funding Corp)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that the following shall be permitted:
(a) (i) prior to the formation of the Operating Partnership, each Subsidiary of the REIT may make Restricted Payments to the Borrowers and the Guarantors and (ii) on and after the formation of the Operating Partnership, each Subsidiary of the REIT may make Restricted Payments to the Borrowers (other than the REIT) and the Guarantors;
(b) the REIT and each Subsidiary thereof may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the REIT and each Subsidiary thereof, in addition to distributions permitted by Section 7.06(f), may purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests issued by it with the proceeds received from the substantially concurrent issue of the Company or any new shares of its Restricted Subsidiaries common stock or other common Equity Interests;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iid) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred prior to the formation of the Operating Partnership, so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would occur result therefrom, the REIT shall be permitted to declare and pay dividends on its Equity Interests or make distributions with respect thereto in an amount for any fiscal year of the REIT equal to the greater of (x) 95% of the aggregate cumulative Adjusted Net Income of the REIT for such fiscal year and (y) such amount as may be required to eliminate 110% of the REIT’s taxable income as a consequence thereofreal estate investment trust or such other amount as is necessary for the REIT to maintain its status as a real estate investment trust under the Code and (ii) on and after the formation of the Operating Partnership, so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom, the Operating Partnership shall be permitted to declare and pay dividends on its Equity Interests or make distributions with respect thereto in an amount for any fiscal year of the REIT equal to the greater of (x) 95% of the aggregate cumulative Adjusted Net Income of the REIT for such fiscal year and (y) such amount that will result in the REIT receiving the necessary amount of funds required to be distributed to its equityholders in order for the REIT to (A) eliminate 110% of its taxable income as a real estate investment trust or (B) maintain its status as a real estate investment trust under the Code;
(be) so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom, the REIT shall be permitted to declare and pay dividends on its Equity Interests in an amount equal to, or make distributions to the holders of its Equity Interests of, any amounts received by the REIT pursuant to Section 7.06(d)(ii);
(f) the Company wouldREIT may make (and following the formation of the Operating Partnership in compliance with Section 7.13(iii), at the time Operating Partnership may make distributions to the REIT to enable the REIT to make) Restricted Payments constituting purchases or redemptions by the REIT of shares of its common stock, but only to the extent that immediately after giving effect to each such Restricted Payment and after giving (i) no Default or Event of Default is then continuing or shall occur, (ii) the Borrowers shall be in compliance with the financial covenants set forth in Section 7.12 on a pro forma effect thereto basis (calculated as if such Restricted Payment had been was made at on the beginning last day of the applicable four-fiscal quarter period, most recently ended for which financial statements have been permitted delivered to incur at least $1.00 of additional Indebtedness the Administrative Agent and the Lenders pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
6.01(a) or (cb)) such Restricted Payment, together with and (xiii) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, reliance on this clause (f) and (g) of the next succeeding paragraph), and (y) together with the aggregate amount of all dividends and other payments or distributions paid subsequent any Restricted Payments made prior to the Issue Restatement Effective Date in reliance on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified StockSection 7.05(e) of the CompanyOriginal Credit Agreement, does not exceed $50,000,000; and
(iig) dividends Restricted Payments that result from cashless exercises of options or distributions payable warrants with respect to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted SubsidiaryREIT.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, :
(i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iiiiv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof3.3(a) above; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (vi), (vii), (viii) and (gix) of the next succeeding paragraph), and (ySection 3.4(b) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisbelow), is less than the sum (sum, without duplication) of the following: , of:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of first the fiscal quarter following the Issue Date commencing October 1, 2004 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B) 100% of the aggregate of Net Cash Proceeds received by the Company (1) the net cash proceeds and (2) including the fair market value of Strategic any Additional Assets transferred or conveyed to the extent acquired in consideration of Equity Interests of the Company (as valued at the time of transfer or conveyance to the Companyother than Disqualified Stock)) since October 7, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date 2009 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or (other than Net Cash Proceeds received from the an issuance or sale of Disqualified such Capital Stock or debt securities to a Subsidiary of the Company that or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan, option plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been converted into, repaid with cash on or exchanged prior to the date of determination); plus
(C) the amount by which Indebtedness of the Company is reduced on the Company’s balance sheet upon the conversion or redeemed for, such Equity Interests exchange (other than by a Subsidiary of the Company) subsequent to October 7, 2009 of any Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or other property, distributed by the Company upon such Equity Interestsconversion or exchange); plus
(D) the amount equal to the net reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from:
(1) repurchases or redemptions of such Restricted Investments by such Person, Disqualified Stock or convertible debt securities sold proceeds realized upon the sale of such Restricted Investment to a purchaser other than the Company or a Subsidiary, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted intoCompany; or
(2) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investment”) not to exceed, or exchanged or redeemed for, Disqualified Stock), plus (C) to in the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return case of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser amount of (1) an amount equal to the fair market value of the Investments previously made by the Company and its or any Restricted Subsidiaries Subsidiary in such Subsidiary as Unrestricted Subsidiary, which amount in each case under this clause (D) was included in the calculation of the date of redesignation and (2) the amount of such Investments. The foregoing Restricted Payments; provided, however, that no amount will be included under this clause (D) to the extent it is already included in Consolidated Net Income.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit any of the followingprohibit:
(ai) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, or a redemption payment after the giving of an irrevocable notice of redemption, if at said the date of declaration such the dividend payment or redemption payment would have complied with the provisions of this Indenture;
(bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness Subordinate Obligations of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that (a) such purchase or redemption will be excluded in subsequent calculations of the amount of Restricted Payments and (b) the Net Cash Proceeds from such sale will be excluded from clause (iii)(B) of Section 3.4(a);
(iii) any defeasance, retirement, purchase, redemption or other acquisition of Subordinated Obligations of the Company or any Guarantor, as the case may be, made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests Subordinated Obligations of the Company (other than or any Disqualified Stock); Subsidiary Guarantor, as the case may be, that qualify as Permitted Refinancing Indebtedness, provided that the amount of any obligors on such net cash proceeds new Subordinated Obligations shall not include obligors that are utilized for any were not obligors on the Subordinated Obligations being defeased, retired, repurchased, redeemed or acquired; provided, however, that such redemptiondefeasance, retirement, purchase, retirementredemption or acquisition will be excluded in subsequent calculations of the amount of Restricted Payments;
(iv) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition shall be excluded from clause (c)(B) or retirement of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness Subordinated Obligations of the Company or any Guarantor Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest therein; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer with respect to the net cash proceeds from an incurrence ofNotes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, or however, that such repurchase and other acquisitions shall be included in exchange for, Permitted Refinancing Indebtednessthe calculation of the amount of Restricted Payments;
(dv) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to the covenant described under Section 3.7 hereof, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes pursuant to the provisions of the covenant described under Section 3.7 hereof; provided further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted Payments);
(vi) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a pro rata basis;
(evii) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member current or former director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management director or employee equity subscription agreement or plan, stock option agreement in effect as of the Issue Dateor similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €$1,000,000 in any twelve-month period; provided, that such payments will be excluded from any subsequent calculation of the amounts of Restricted Payments; provided further, that such agreement amount in any twelve-month period may be increased in an amount not to exceed (a) the cash proceeds from the issue or sale of Equity Interests (other than Disqualified Stock) to any such repurchaseofficers, redemption directors, employees or other acquisition consultants that occurs after the Issue Date to the extent proceeds from the issue or retirement sale of such Equity Interests have not otherwise been applied to make Restricted Payments plus (b) the cash proceeds of key man life insurance received by the Company or its Restricted Subsidiaries after the agreement are approved by a majority of the disinterested members of the Board of DirectorsIssue Date;
(hviii) loans or advances in the ordinary course acquisition of business to Affiliates or Persons with which Equity Interests by the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business exercise of stock options or stock appreciation rights by way of cashless exercise;
(ix) the Company or a Subsidiary payment of cash in such jurisdiction and lieu of fractional shares of Capital Stock in a form that is customary to address foreign investment regulation or practice in such jurisdiction, connection with any transaction otherwise permitted under this covenant; and
(x) other Restricted Payments in an aggregate amount since the date of this Indenture not to exceed $7,500,000 outstanding at any one time;25,000,000.
(ic) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined (i) in good faith by senior management of the manner contemplated Company and (ii) if the fair market value exceeds $10,000,000, by the definition Board of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeDirectors.
Appears in 1 contract
Sources: Indenture (Venoco, Inc.)
Restricted Payments. The Company shall will not, directly or indirectly:
(1) and shall will not permit any of its Restricted Subsidiaries to, directly declare or indirectlypay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company;
(2) and will not permit any of its Subsidiaries to, purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company; or
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii3) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii3) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a1) no Default or Event of Default shall have under this Agreement or the Loan Documents has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c2) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Agreement (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3) and (g4) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Aa) 50% of the cumulative aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period (beginning October 1, 2007 and ending on the last day of the Company’s most recent calendar month for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period, plus
(b) from the first day lesser of first fiscal quarter following (A) the Issue Date aggregate amount (i) returned in cash to the end Company or (ii) representing cancellation of Indebtedness of the Company’s most recently ended fiscal quarter for which internal financial statements are available at , in each case with respect to Restricted Investments made after the time date of this Agreement whether through interest payments, principal payments, dividends, other distributions or the forgiveness or cancellation of Indebtedness or (B) the initial amount of such Restricted Payment Investment, plus
(or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bc) 100% of the aggregate lesser of (1A) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue disposition, retirement or sale redemption of Equity Interests all or any portion of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was Investments made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and this Agreement or (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this IndentureAgreement; provided, however, that such dividend will be included in the calculation of the amount of Restricted Payments (without duplication for declaration);
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company from employees, former employees, directors or any Restricted Subsidiary former directors of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement Subsidiaries (or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time permitted transferees of such designationemployees, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary former employees, directors or former directors), pursuant to the terms of this paragraphagreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell, then or are granted the option to purchase or sell, such Equity Interests; provided, however, that the aggregate amount of such Restricted Payments repurchases made in any calendar year, shall be reduced by not exceed $5.5 million;
(3) the lesser repurchase of (a) an amount equal to the fair market value Equity Interests of the Investments previously made by Company deemed to occur upon the Company and its Restricted Subsidiaries in cashless exercise of stock options upon surrender of Equity Interests to pay the exercise price of such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and options;
(b4) the amount contribution to Opco of such not more than $55.0 million on the Closing Date to be used by Opco to repurchase or redeem Opco’s Senior Subordinated Notes due 2012;
(5) payments to Francisco Partners or any of its Affiliates permitted by clause (6) of the second paragraph of Section 7.4 hereof; and
(6) payments to General Electric Company, GE Investments. Any designation , Inc., Global Acquisition Company or redesignation of a Subsidiary shall be evidenced to the Trustee by filing their Affiliates made in accordance with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07Tax Matters Agreement. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) assets or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash assets or securities that are required to be valued by this covenant will be determined by the Board of Directors whose resolution with respect thereto will be delivered to Purchaser, or the Holders if Purchaser owns less than a majority of the Notes. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million and if the Restricted Payment shall is to be determined in the manner contemplated by the definition made to an Affiliate of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered Company or to the Trusteeholders of or in respect of any Equity Interest. Not later than the date of making any Restricted Payment, the Company will deliver to Purchaser, or the Holders if Purchaser owns less than a majority of the Notes, an officer’s certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 7.2 were computed, together with a copy of any fairness opinion or appraisal required by this Agreement.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its 34 42 Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries)Company; (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Senior Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; (iv) pay fees pursuant to, or make any other distribution in respect of, the Management Agreement; or (iiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries on or after the Issue Date date hereof (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (v) and or (gvi) of the next succeeding paragraph), paragraph and (y) excluding any Restricted Payment made on the aggregate amount of all dividends and other payments or distributions paid subsequent to date hereof directly by the Issue Date on account Company with the proceeds of the Company’s or any Offering in amounts not to exceed the amounts set forth in this Offering Memorandum under the caption "Use of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisProceeds"), is less than the sum (sum, without duplication) , of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date hereof to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date hereof as a capital contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (Ciii) to the extent that any Restricted Investment that was made after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such Investments. Restricted Investment.
(d) The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
hereof; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; (ciii) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
; (div) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of common Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of payments by the Company or any Restricted Subsidiary of the Company for allocation (Company, directly or indirectly, to NES Group, Inc. to satisfy tax obligations, in accordance with the Tax Payment Agreement as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of on the Issue Datedate hereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall amounts do not exceed €1,000,000 in the amounts that, without recognizing any twelve-month period; provided, further, that such agreement tax loss carryforwards or such repurchase, redemption carrybacks or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.tax
Appears in 1 contract
Sources: Indenture (Curtis Sub Inc)
Restricted Payments. The Company shall notDeclare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, and shall not permit or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of its Restricted Subsidiaries any Group Member (or enter into or be party to, or make any payment under, any Synthetic Purchase Agreement with respect to any such Capital Stock if the purchase, redemption, defeasance, retirement or other acquisition thereof by the Borrower and its Subsidiaries would otherwise be prohibited under this Section 7.6), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, (i) purchasewhether in cash or property or in obligations of the Borrower or any Subsidiary Guarantor, redeem or otherwise acquire enter into any derivatives or retire for value (including, without limitation, in connection other transaction with any merger financial institution, commodities or consolidation involving the Companystock exchange or clearinghouse (a “Derivatives Counterparty”) obligating any Equity Interests of the Company or any of its Restricted Subsidiaries Group Member to make payments (other than payments solely in the form of common stock of the Borrower) to such Derivatives Counterparty as a result of any change in market value of any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); Capital Stock (ii) make any payment on or with respect tocollectively, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Paymentexcept that:
(a) any Group Member may pay cash dividends or distributions on its Capital Stock to the Borrower or any of its Subsidiaries; and
(b) so long as no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, result therefrom at the time of such dividends are declared or other Restricted Payment and after giving is made (determined on a pro forma effect thereto basis as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth Payments or dividends were paid in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) declared or securities proposed to be transferred or issued by the Company or such Restricted Subsidiarymade, as applicable), the case Borrower may be, pursuant to the make any Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteePayments.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (iother than dividends or distributions payable solely in the Company's Equity Interests (other than Disqualified Stock) or to the Company);
(b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries Company's Equity Interests;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except (i) a payment of interest or principal at the Stated Maturity; Maturity thereof or (iiiii) Subordinated Indebtedness acquired in anticipation of satisfying a sinking fund obligation, principal installment or payment of principal upon final maturity of such Subordinated Indebtedness, in each case acquired within one year of the date of the sinking fund obligation, principal installment or payment of principal upon maturity; or
(d) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (ia) through (iiid) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof;of such Restricted Payment; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f2) and (g3) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Ai) 50% of the cumulative Company's Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date April 15, 2002 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus
(Bii) 100% of the aggregate of (1) the net cash proceeds and received by the Company (2) including the fair market value of Strategic Assets transferred any Permitted Business or conveyed assets used or useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”other than Disqualified Stock), in each case received by the Company ) since the Issue Date date hereof as a contribution to its the Company's common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or Stock)or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus plus
(Ciii) to the extent that any Restricted Investment that was made after the Issue Date date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the initial amount of such InvestmentsRestricted Investment. The foregoing So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof of the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of this Indenturehereof;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness or of any of the Company or any Guarantor or any Company's Equity Interests by conversion into, or by an exchange for, shares of the Company Company's Equity Interests (other than Disqualified Stock), or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary any of the Company's Restricted Subsidiaries) of, other the Company's Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
(c3) the defeasance, redemption, purchase, retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted SubsidiariesEquity Interests on a pro rata basis;
(e5) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') management pursuant to any management equity subscription agreement or agreement, stock option agreement in effect as of the Issue Dateor similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $2.5 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;and
(h6) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, other Restricted Payments in an aggregate amount since the date hereof not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.0725.0 million. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this Section 4.10 will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination shall Company whose resolutions with respect thereto will be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.10 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (Villa Pines Care LLC)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Affiliate of its Restricted Subsidiaries the Company (other than (A) any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company that is a Subsidiary Guarantor and (B) Employee Stock Repurchases); (iiiii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except a payment of interest in accordance with the mandatory redemption or principal at Stated Maturityrepayment provisions set forth in the original documentation governing such Indebtedness; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Series A/B Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fy) and (gz) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), paragraph is less than the sum of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Series A/B Issue Date to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of Net Equity Proceeds (1A) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale sale, subsequent to the Series A/B Issue Date, of Equity Interests Qualified Capital Stock of the Company or (B) of any other than Disqualified Stock) or from the issuance or sale of Disqualified Stock Equity Interests or debt securities of the Company that have been issued subsequent to the Series A/B Issue Date and that have been converted into, or exchanged or redeemed for, into such Equity Interests Qualified Capital Stock (other than any such Equity Interests, Disqualified Qualified Capital Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified issued upon conversion of the Convertible Preferred Stock), plus (Ciii) to the extent that any not otherwise included in Consolidated Net Income, the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or a Restricted Investment that was made Subsidiary after the Series A/B Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if from any Unrestricted Subsidiary is redesignated or from the redesignation of an Unrestricted Subsidiary as a Restricted SubsidiarySubsidiary (valued as provided below), the lesser of plus (1iv) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments$15 million. The foregoing provisions will shall not prohibit any of the following:
: (ax) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (by) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.the
Appears in 1 contract
Sources: Indenture (Parker Drilling Co /De/)
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so if there exists or would result therefrom any Default; except as follows:
(a) The Company or any of its Subsidiaries may pay dividends on its capital stock or other Equity Interests payable solely in such Person’s own capital stock or Equity Interests;
(b) The Company may purchase, redeem, retire, defease or otherwise acquire for value (together, “Repurchase”) its Equity Interests issued to employees of the Company or its Subsidiaries in exchange solely for other Equity Interests of the Company, provided such Repurchase shall occur pursuant to a Contractual Obligation entered into by the Company prior to and not in anticipation of any Default and approved by the Board of Directors of the Company;
(c) Any Subsidiary of the Company may pay dividends to or repurchase its Equity Interests from the Company or another wholly-owned Subsidiary;
(d) Any Adobe VC Partnership may make ordinary course distributions to its partners in ratable fashion, according to their respective interests; and
(e) The Company may Repurchase its Equity Interests from an employee of the Company or its Subsidiaries (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with an amount equal to any merger or consolidation involving taxes payable by such employee upon the Company) any exercise of options to purchase Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned approved by the Company or any Board of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) Directors of the Company, or (ii) dividends or distributions payable to upon termination of such employee’s employment with the Company or any of its Restricted Subsidiaries or (iii) if Subsidiaries; provided the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time aggregate cash amount of such Restricted Payment (orRepurchase, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net together with all other cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received Repurchases by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company under this subsection (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stocke), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding 20,000,000 in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Sources: Credit Agreement (Adobe Systems Inc)
Restricted Payments. The Company shall will not, and shall will not permit any of its Restricted Wholly-Owned Subsidiaries to, directly or indirectlyindirectly declare, order, pay or make any Restricted Payment or set aside any sum or property therefore except as follows:
(i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Subsidiaries of the Company or any of its Restricted Subsidiaries may (other than any such Equity Interests owned by A) pay dividends and make distributions to the Company or any of its Restricted Subsidiaries); and (B) repay indebtedness owed to the Company;
(ii) the Subsidiaries of the Company may make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment distributions to the Notes or Company to enable the Subsidiary Guarantees, Company to pay as and when due amounts owed from time to time hereunder and under the case may be, except a payment of interest or principal at Stated Maturityother Lease/Purchase Documents; or and
(iii) make any Restricted Investment the Company may repurchase shares of its Capital Stock and/or pay dividends to Holdings, provided (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(aA) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment payment or would result therefrom, (B) the Company and its Subsidiaries will be in pro forma compliance with the financial covenants set forth in Section 20 of this Agreement as of the most recently ended period for which financial statements were delivered pursuant to Section 21(a) of this Agreement on a pro forma basis both before and after giving pro forma effect thereto to any Restricted Payments made hereunder as if such Restricted Payment had been Payments were made at on the beginning last day of the applicable four-quarter such period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (xC) the aggregate amount of all other Restricted Payments made by the Company hereunder from and its Restricted Subsidiaries after the Issue Commencement Date shall not exceed (excluding Restricted Payments permitted by clauses (bi) through (e) and, to $10,000,000 in the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph)aggregate during any fiscal year, and (yii) $20,000,000 in the aggregate during the term of this Agreement, (D) in the event that the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was Payments made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition hereunder shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of exceed $2,500,000 5,000,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuingfiscal year, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of Capital Expenditures permitted under this Section 4.07 includes an Investment Agreement in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments fiscal year shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to excess, and (E) the Trustee by filing with Coffeehouse Level EBITDA Margin for the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, most recently completed Reference Period for which financial statements have been delivered pursuant to the Restricted Payment. The fair market value Section 21(a)(ii) of any non-cash Restricted Payment shall this Agreement must be determined in the manner contemplated by the definition 15% or greater of the term “fair market value,” and the results of Coffeehouse Level Sales for such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeReference Period.
Appears in 1 contract
Sources: Lease and License Financing and Purchase Option Agreement (Caribou Coffee Company, Inc.)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make or incur any liability to declare or make any Restricted Payment unless:
(i) purchaseif, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such the proposed Restricted Payment:, the sum of the aggregate amount of Restricted Payments made during any Fiscal Year would not exceed the Permitted Restricted Payment Amount; and
(aii) no Default or Event if, after giving effect to any proposed Restricted Payment which is a Dividend the sum of Default shall have occurred and be continuing or the aggregate amount of Dividends made during any Fiscal Year would occur as a consequence thereof;not exceed the Permitted Dividend Amount.
(b) In the event a Dividend is declared at a time when the Company wouldis a Subchapter "S" corporation for federal income tax purposes, at the time Tax Amount applicable to all such Dividends declared during any Fiscal Year of such the Company shall not affect or be included in the calculation of the Permitted Restricted Payment Amount or the Permitted Dividend Amount for purposes of this Section and after giving pro forma effect thereto such Tax Amount shall be permitted to be paid as if such Restricted Payment had been made at the beginning a Dividend so long as all of the applicable four-quarter period, other terms and conditions of this -77- 84 Section shall have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; andsatisfied.
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the The Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or will not declare any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not Dividend which constitutes a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment payable more than sixty (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B60) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with thereof.
(d) For the provisions purposes of this Indenture;
(b) the redemptionSection, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment declared, purchase, retirement, defeasance paid or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or distributed in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated property shall be deemed to be Restricted Payments at the time greater of such designation, in an amount equal to the book value or fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms Directors of the definition Company) of “Unrestricted Subsidiary” set forth in this Indenture (in such property at the case time of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date making of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteequestion.
Appears in 1 contract
Sources: Acquisition Term Loan Agreement (Tic Acquisition LLC)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (the Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of its Restricted Subsidiaries); the Company;
(ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(aA) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bB) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(cC) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Supplemental Indenture (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (5) and or (g6) of the next succeeding paragraphSection 4.07(b), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from commencing on the first day of first the fiscal quarter following in which the Issue Date occurs to and ending on the last day of the fiscal quarter ended immediately prior to the end date of the Company’s most recently ended fiscal quarter such calculation for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(Bii) 100% of the aggregate of net proceeds (1) the net cash proceeds and (2) including the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case property other than cash) received by the Company since the Issue Date date of this Supplemental Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus ; plus
(Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Supplemental Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (Dy) if any the initial amount of such Restricted Investment; plus
(iv) upon redesignation of an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as Subsidiary.
(b) The provisions of the date of redesignation and (2Section 4.07(a) the amount of such Investments. The foregoing provisions will shall not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Supplemental Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor of its Restricted Subsidiaries or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(BC)(ii) of the preceding paragraphSection 4.07(a);
(c3) the defeasance, redemption, purchaserepurchase, retirement retirement, defeasance or other acquisition of subordinated Indebtedness or Disqualified Stock of the Company or any Guarantor of its Restricted Subsidiaries with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateagreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $7.5 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h5) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate100.0 million; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Sources: First Supplemental Indenture (Scotts Miracle-Gro Co)
Restricted Payments. The Company shall will not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly------------------- indirectly (through a Subsidiary or otherwise), (i) purchaseauthorize, redeem declare, pay or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment Payment at any time on or prior to April 1, 1998. Thereafter, the Company will not, directly or indirectly (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”a Subsidiary or otherwise), unlessauthorize, declare, pay or make any Restricted Payment unless both at the time of of, and immediately after giving effect to has been given to, such Restricted Paymentproposed action:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;continuing; and
(b) the Company would, at the time sum of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (xi) the aggregate amount of all other sums and property included in all Restricted Payments directly or indirectly declared, ordered, paid, distributed, made or set apart by the Company during the period from and including the Closing Date to and including the date of such proposed action (the "COMPUTATION PERIOD"), plus (ii) the aggregate ------------------ amount of all MS Payments made by the Company at any time during the period from and its Restricted Subsidiaries after including the Issue Closing Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to and including the extent deducted in computing Consolidated Net Income, (f) and (g) second anniversary of the next succeeding paragraph)Closing Date, and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is shall not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than exceed the sum of (without duplication) of the following: (A1) 50% (or minus 100% in the case of the cumulative Consolidated Net Income any deficit) of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Adjusted Consolidated Net Income for such period is a deficit, less 100% of such deficit), the Computation Period plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made net proceeds received by ---- the Company and its Restricted Subsidiaries in such Subsidiary as from the sale of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness capital stock of the Company or any Guarantor or any Equity Interests during the Computation Period. For all purposes of the Company or any of its Restricted Subsidiaries in exchange forthis Section, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or involved in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation Payment directly or otherwise) to directorsindirectly declared, officers and employees of the Company and its Restricted Subsidiaries not ordered, paid, distributed, made or set apart in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated property shall be deemed to be Restricted Payments at the time greater of such designation, in an amount equal to (x) the fair market - value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto property (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with (y) the terms net book value thereof on the books of the definition of “Unrestricted Subsidiary” set forth Company (as determined in this Indenture (- accordance with GAAP), in the each case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value as determined on the date of the such Restricted Payment of the asset(s) is declared, ordered, paid, distributed, made or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Paymentset apart. The fair market value of Company will not authorize any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteewhich is not payable within 60 days after authorization.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as stockholders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Consolidated Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beSubordinated Indebtedness, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, :
(a) at the time of and after giving effect to such Restricted Payment:
(a) , no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;,
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the Consolidated Interest Coverage Ratio test set forth in first paragraph of Section 4.09 5.08 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries on and after the Issue Date (excluding Restricted Payments permitted by by, and made pursuant to, clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fii) and (giii) and (viii) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum sum, without duplication and except as credited in the next succeeding paragraph, of (without duplication) of the following: (Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from beginning on the first last day of first the fiscal quarter following immediately preceding the Issue Date to and ending on the end last day of the Company’s most recently ended fiscal quarter for which internal financial statements are available at immediately preceding the time date of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case Net Cash Proceeds received by the Company since the Issue Date on and after November 25, 1998 as a contribution to its common equity capital Capital Contribution or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible converted debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus the amount of Net Cash Proceeds received by the Company upon such conversion or exchange, plus (Ciii) the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries on and after the Issue Date resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Company or any Restricted 61 Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, or (z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of Restricted Investments made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary on and after the Issue Date, plus (iv) to the extent that any Restricted Investment that was made on and after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of, to the extent paid to the Company or a Restricted Subsidiary, (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
foregoing provisions; (bii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided PROVIDED that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for for, and the Equity Interests issued or exchanged for, any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc) of the preceding paragraph and each other clause of this paragraph;
; (ciii) the defeasance, redemption, purchaseretirement, retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence ofNet Cash Proceeds from, or issued in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
; PROVIDED that the amount of any such Net Cash Proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (dc) of the preceding paragraph and each other clause of this paragraph; (iv) the payment of any dividend or other distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any of its Restricted Subsidiary of the Company Subsidiaries held by any member of the Company’s ('s or any of its such Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue DateSubsidiary's management; provided PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $1.0 million in any twelve-month periodfiscal year; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or (vi) retiring any Equity Interests of the agreement are approved Company to the extent necessary (as determined in good faith by a majority of the disinterested members of the Board of Directors;
(h, whose determination shall be evidenced by a resolution thereof) loans to prevent the loss, or advances in to secure the ordinary course renewal or reinstatement, of business to Affiliates any license or Persons with which franchise held by the Company or any Restricted Subsidiary from any governmental agency; (vii) Investments in Telecommunications Assets; PROVIDED that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (vii) that are at the time outstanding, does not exceed the sum of (y) $15.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (vii) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary may have contractual arrangements in any jurisdiction of the Company, except to the extent any such loans net reduction amount is included in the amount calculated 62 pursuant to clause (c) of the preceding paragraph or advances are reasonably necessary any other clause of this paragraph; (viii) Investments in Telecommunications Assets made after November 25, 1998 with the (x) Net Cash Proceeds, (y) the fair market value of Telecommunications Assets or (z) Equity Interests of a Person that becomes a Restricted Subsidiary (provided that the assets of such Person consist entirely or substantially entirely of Telecommunications Assets), in each case, received from the issuance or sale (other than to be made in connection with conducting a Subsidiary of the business Company) of Equity Interests of the Company (other than any Disqualified Stock); PROVIDED that the amount of any such Net Cash Proceeds that are utilized for any such Investment shall be excluded from clause (c) of the preceding paragraph and each other clause of this paragraph; (ix) Investments in ION; PROVIDED that the aggregate fair market value thereof (measured on the date each such Investment was made or a Subsidiary returned, as applicable), when taken together with all other Investments made pursuant to this clause (ix) does not exceed the sum of (I) $15.0 million, plus, (II) for each fiscal year, an amount equal to the amount of cash received by the Company or any of its Restricted Subsidiaries from ION or any of its Subsidiaries during such fiscal year, except to the extent any such amount is included in such jurisdiction the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph, plus (III), to the extent necessary to pay reasonable and in a form that is customary to address foreign investment regulation or practice in such jurisdictionnecessary operating expenses of ION, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
1.0 million in each fiscal year; and (i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(kx) Investments in connection the German Joint Venture; PROVIDED that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (x) that are at the Permitted Closing Stepstime outstanding, does not exceed the sum of (y) $100.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (x) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, except to the extent such amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph. The Board of Directors may not designate any Restricted Subsidiary of the Company (other than a newly created Subsidiary in which no Investment has previously been made (other than any de minimus amount required to be capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary if (a "DESIGNATION") unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation Designation; (ii) the Company would, immediately after giving effect to such Designation, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of Section 5.08 hereof and (iii) the Company would not cause a Default be prohibited under the Indenture from making an Investment at the time of such Designation (except at any time during which assuming the effectiveness of such Designation for purposes of this Section 5.06) in an amount equal to the fair market value of the net Investment of the Company maintains Investment Grade Status)and all Restricted Subsidiaries in such Subsidiary on such date. For purposes In the event of making any such designationDesignation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall will be deemed to be Restricted Payments at an Investment made as of the time of such designationDesignation and will reduce the amount available for Restricted Payments under the first or second paragraph of this covenant, as applicable. All such outstanding Investments will be deemed to constitute Restricted Payments in an amount equal to the fair market value of such Investments at the time of such designationDesignation. Such designation shall only A Designation may be permitted if such Restricted Payments would revoked and an Unrestricted Subsidiary may thus be permitted at such time and if such redesignated a Restricted Subsidiary otherwise meets (a "REVOCATION") by a resolution of the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant delivered to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by Trustee; PROVIDED that the Company will not make any Revocation unless: (i) no Default or Event of Default shall have occurred and its Restricted Subsidiaries in such Unrestricted Subsidiary be continuing at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution after giving effect to such action Designation; and evidencing the valuation (ii) all Liens and Indebtedness of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in Subsidiary outstanding immediately following such Revocation would, if incurred at such time, have been permitted to be incurred at such time for all purposes under this Indenture (in the case of a designation) and with this Section 4.07Indenture. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company (or such Restricted Subsidiary, as the case may be, ) pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment asset(s) or securities that are required to be valued by this covenant shall be determined in the manner contemplated good faith by the definition Board of the term “Directors (such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trusteevalue exceeds $15.0 million).
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution of any kind or character on account of the Equity Interests of the Company or any of its Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of the Equity Interests of the Company or any of its Subsidiaries in their capacity as such, except (a) dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of the Company or (b) dividends or distributions payable to the Company or any Wholly-Owned Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company, any Subsidiary of the Company or any direct or indirect parent of its Restricted Subsidiaries (other than the Company, except any such Equity Interests owned by the Company or any Wholly-Owned Subsidiary of its Restricted Subsidiaries)the Company; (iiiii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or prior to the Subsidiary Guarantees, as the case may be, except a payment Stated Maturity of interest or principal at Stated Maturitysuch Indebtedness; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments declared or made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Incomeii), (fiii), (iv) and (gv) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication1) of the following: $12.5 million, plus (A2) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of first the fiscal quarter following the Issue Date commencing June 29, 1997 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B3) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition portion of the term “fair market value”), in each case Net Proceeds received by the Company since the Issue Date as from a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock Interests (or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C4) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2B) the initial amount of such InvestmentsRestricted Investment. The foregoing provisions will shall not prohibit any of the following:
(ai) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (bii) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Investment in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other of Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment, redemption, purchaserepurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(B3) of the preceding paragraph;
paragraph (c); (iii) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company in exchange for, or any Restricted out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company for allocation (as a free allocation or otherwiseCompany) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company (other than Disqualified Stock); provided that any net cash proceeds that are utilized for such redemption, repurchase, retirement or other acquisition, and any Restricted Net Income resulting therefrom, shall be excluded from clauses (3) and (2) of the preceding paragraph (c) respectively; (iv) the defeasance, redemption, repayment or repurchase of subordinated Indebtedness in exchange for, or out of the net cash proceeds from, an incurrence of Permitted Refinancing Debt or the substantially concurrent sale (other than to a Subsidiary of the Company held by any member Company) of Equity Interests of the Company’s Company (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateother than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repayment, repurchase, retirement or other acquisition shall be excluded from clause (3) of the preceding paragraph (c); and (v) the repayment by the Company on the date of this Indenture of up to $219.0 million in aggregate price paid for all such repurchasedprincipal amount of Indebtedness owed by the Company to Delta Woodside Industries, redeemed, acquired Inc. or retired Equity Interests shall not exceed €1,000,000 in any twelve-month periodSubsidiary thereof; provided, further, that upon such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationrepayment, all outstanding Investments remaining Indebtedness owed by the Company and its Restricted Subsidiaries in the to Delta Woodside Industries, Inc. or any Subsidiary so designated thereof shall be deemed to be Restricted Payments at the time of such designation, in an amount equal contributed to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time Company's capital and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07thereby cancelled. The amount of all Restricted Payments (other than cash) shall be the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Not later than the date of making any non-cash Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment shall is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, which calculations may be determined in based upon the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the TrusteeCompany's latest available financial statements.
Appears in 1 contract
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company).
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company;
(other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness of the Company or any Guarantor that is contractually subordinated in right of payment to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Subsidiary Guarantees, as the case may beCompany and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Leverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b2) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) 8) of the next succeeding paragraphSection 4.07(b), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day beginning of the first fiscal quarter following commencing after the Issue Date date of this Indenture to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests of the Company (other than any such Equity Interests, Interests or Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus ; plus
(C3) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is (a) sold for cash or otherwise liquidated or repaid for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of the Company the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (Dii) if the initial amount of such Restricted Investment; plus
(4) to the extent that any Unrestricted Subsidiary of the Company designated as such after the date of this Indenture is redesignated as a Restricted SubsidiarySubsidiary after the date of the Indenture, the lesser of (1i) an amount equal to the fair market value Fair Market Value of the Investments previously made by the Company and its Restricted Subsidiaries Company’s Investment in such Subsidiary as of the date of such redesignation and or (2ii) such Fair Market Value as of the amount date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of the Indenture; plus
(5) 50% of any dividends received by the Company or a Restricted Subsidiary of the Company after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such Investments. dividends were not otherwise included in the Consolidated Net Income of the Company for such period.
(b) The foregoing provisions of Section 4.07(a) hereof will not prohibit any of the followingprohibit:
(a1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof of the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock)) or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 4.07(a) hereof;
(3) the repurchase, redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) or retirement for value of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f4) so long as no Default has occurred and is continuing, the repurchase continuing or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuingwould be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or Company, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any member current or former officer, director or employee of the Company’s (Company or any of its Restricted Subsidiaries’) management Subsidiaries pursuant to any management equity subscription agreement, stock option agreement, shareholders’ agreement or stock option agreement in effect as of the Issue Datesimilar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall may not exceed €1,000,000 $1.0 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h5) loans or advances in the ordinary course repurchase of business Equity Interests deemed to Affiliates or Persons with which occur upon the Company or a Subsidiary may have contractual arrangements in any jurisdiction exercise of stock options to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business Equity Interests represent a portion of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one timeexercise price of those stock options;
(i6) so long as no Default has occurred and is continuingcontinuing or would be caused thereby, advances constituting Investment the declaration and payment of regularly scheduled or loans accrued dividends to directors, officers and employees holders of any class or series of Disqualified Stock of the Company and or any Restricted Subsidiary of the Company issued after the date of this Indenture in accordance with the Leverage Ratio test set forth in Section 4.09(a) hereof;
(7) payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the ordinary course issuance of business for bona fide business purposes not in excess fractional shares upon (i) the exercise of €1,000,000 at options or warrants or (ii) the conversion or exchange of Capital Stock of any one time outstanding in the aggregatesuch Person;
(j) other Restricted 8) Permitted Payments not to exceed $15,000,000 in the aggregateParent; and
(k9) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to so long as no Default has occurred and is continuing or would be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designationcaused thereby, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be other Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes since the date of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant Indenture not to exceed the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser greater of (ai) an amount equal to the fair market value $7.5 million and (ii) 2.0% of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and Company’s Total Assets.
(bc) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall will be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this covenant will be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination shall Company whose resolution with respect thereto will be evidenced by an Officers’ Certificate delivered to the Trustee. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds $5.0 million.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiid) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (iiid) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(ciii) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) date of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis)this Indenture, is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date commencing April 1, 1998 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case Net Cash Proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return sum of capital with respect to (x) the initial amount of such Restricted Investment and (less y) 50% of the cost aggregate Net Proceeds received by the Company or any Restricted Subsidiary in excess of dispositionthe initial amount of such Restricted Investment, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments$10 million. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Biii) (B) of the preceding paragraph;
; (c) the defeasance, redemption, purchaserepurchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds Net Cash Proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
Equity Interests on a pro rata basis; (e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has or Event of Default shall have occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s ('s or any of its Restricted Subsidiaries’) ' management pursuant to any management equity subscription agreement upon the death, disability or stock option agreement in effect as termination of the Issue Dateemployment of such member of management; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $500,000 in any twelve-month periodcalendar year and $2.5 million in the aggregate; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(hf) loans or advances in the ordinary course of business to Affiliates or Persons with which Unimast by the Company or a Subsidiary may have contractual arrangements in any jurisdiction WPSC prior to the extent first anniversary of the date of the Indenture of amounts borrowed by WPSC under the Revolving Credit Facility provided (i) such loans or advances do not exceed $40 million at any time outstanding, (ii) Unimast pays interest to WPSC on such loans or advances in an amount equal to the interest payable by WPSC on such amounts pursuant to the Revolving Credit Facility and (iii) such loans and advances are reasonably necessary repaid in full on or prior to be made in connection with conducting the business first anniversary of the date of the Indenture; (g) the payment by the Company or a Subsidiary in such jurisdiction and in a form that is customary of management fees to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount WHX not to exceed $7,500,000 outstanding at 2.5 million in any one time;
calendar year, in exchange for services provided to it by WPN Corp. pursuant to the management agreement between WHX and WPN Corp.; and (ih) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees payments permitted under the WHX Agreements. In determining the amount of Restricted Payments permissible under clause (iii) of the Company first paragraph of this covenant, amounts expended pursuant to clauses (a) and its Restricted Subsidiaries in (e) of the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other immediately preceding paragraph shall be included as Restricted Payments not to exceed $15,000,000 in the aggregate; and
for purposes of such clause (k) Investments in connection with the Permitted Closing Stepsiii). The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status)Default. For purposes of making such designationdetermination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be Restricted Payments at the time of such designation, . All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation shall only will be permitted only if such Restricted Payments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “an Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition Board of Directors of the term “fair market value,” and the results of such determination Company whose resolution with respect thereto shall be evidenced by an Officers’ Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an officer's certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
Restricted Payments. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests, including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries the Company (other than any such Equity Indenture Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, value any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Note Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in the preceding clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"); provided, unlessthat the Company and its Restricted Subsidiaries may make Restricted Investments if, at the time of and after giving effect to such Restricted PaymentInvestment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment Investment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in first paragraph of Section 4.09 hereof; and
(c) such Restricted PaymentInvestment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (fi) and (gii) of the next succeeding paragraph), and but including any Restricted Payments permitted by clauses (yiii) the aggregate amount of all dividends and other payments or distributions paid subsequent (to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or extent paid to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (a Person other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the a Restricted Subsidiary making thereof), (iv), (v), (vi) and (vii) of such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basisparagraph), is less than the sum (sum, without duplication, of
(i) if, on the date of such proposed Restricted Investment, at least one complete fiscal quarter has elapsed subsequent to the Issue Date, and for which financial statements of the following: Company are available, the remainder of (A) 50% of the cumulative Consolidated Net Income Cash Flow of the Company (or, in the case Consolidated Cash Flow of the Company shall be negative, less 100% of such deficit) for the period (taken as one accounting period) beginning on the first day of the fiscal quarter of the Company following the Issue Date and ending on the last day of the last full fiscal quarter immediately preceding the date of such Restricted Payment minus (B) the product of 2.00 times the cumulative Consolidated Interest Expense of the Company from the first day of first the fiscal quarter of the Company following the Issue Date to through the end last day of the Company’s most recently ended last full fiscal quarter for which internal financial statements are available at immediately preceding the time date of such Restricted Payment Payment, plus
(or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (Bii) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockStock and other than Equity Interests sold to a Subsidiary of the Company), plus the net amount of cash received by the Company or any Restricted Subsidiary thereof upon such conversion or Indenture exchange (in each case of this clause (ii) or from the issuance other than pursuant to an issue or sale of Disqualified Stock or debt securities to a Subsidiary of the Company), plus
(iii) the aggregate amount of (A) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of cash to the Company that have been converted intoor any Restricted Subsidiary thereof from an Unrestricted Subsidiary, (B) cash proceeds realized by the Company or exchanged or redeemed for, any Restricted Subsidiary thereof upon the sale of such Equity Interests (Restricted Investment in an Unrestricted Subsidiary to a Person other than any such Equity Interests, Disqualified Stock the Company or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into(C) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary in compliance with Section 4.18 hereof, or exchanged or redeemed for, Disqualified Stocknot to exceed in the case of any of the immediately preceding clauses (A), plus (B) or (C) the aggregate amount of the Restricted Investments made by the Company or any Restricted Subsidiary thereof in the applicable Unrestricted Subsidiary after the Issue Date, plus
(iv) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return amount of capital with respect to such Restricted Investment proceeds (less the net of any cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made from such sale or liquidation received by the Company and its or a Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) Company, not to exceed the amount of such InvestmentsRestricted Investment originally made. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(bi) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company Issuer or any Guarantor or any of Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(Bc)(ii) of the preceding paragraph;
; (cii) the defeasance, redemption, purchaseretirement, retirement repurchase or other acquisition of subordinated Indebtedness of the Company Issuer or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Incurrence of Permitted Refinancing Indebtedness;
; (diii) the payment of any dividend or distribution in cash by a Restricted Subsidiary of the Company to the Company or any holders of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent on a portion of the exercise price of such stock options;
pro rata basis; (fiv) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any of its Restricted Subsidiary of the Company Subsidiaries held by any member of the Company’s ('s or any of its such Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; Subsidiary's management, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €$1,000,000 in any twelve-month period (with unused amounts being carried over to succeeding twelve-month periods, subject to a maximum of $2,500,000 in any twelve-month period); provided, further, that (v) required dividend payments on the New Preferred Shares at the rate applicable to such agreement or such repurchase, redemption or other acquisition or retirement or shares on the agreement are approved by a majority Issue Date; (vi) Restricted Payments of the disinterested members type described in clause (iii) of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business first clause of the Company or first paragraph of this Section 4.07 (so long as such payments are made to a Subsidiary in such jurisdiction and in a form Person that is customary to address foreign investment regulation not an Affiliate of the Company), or practice in such jurisdictionIndenture clause (iv) of the first clause of said paragraph, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
5,000,000; and (ivii) so long as no Default has or Event of Default shall have occurred and is continuingbe continuing or would occur as a consequence thereof, advances constituting Investment other Restricted Investments in cash or loans by extension of credit not to directorsexceed, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
, $75,000,000; provided that no more than $25,000,000 (jof such $75,000,000) other may constitute Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Persons other than Qualified Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its or Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07are Credit Parties. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company (or such Restricted Subsidiary, as the case may be, ) pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment asset(s) or securities that are required to be valued by this covenant shall be determined in the manner contemplated good faith by the definition Board of Directors of the term “Company (such determination to be based upon an opinion or appraisal issued by an Independent accounting, appraisal or investment banking firm of national standing if such fair market value,” and value exceeds $5,000,000). For purposes hereof, any Investments made by the results Company or any of such determination its Restricted Subsidiaries subsequent to September 30, 2002 shall be evidenced by an Officers’ Certificate delivered deemed to have been made on the Issue Date (and, to the Trusteeextent that such Investments would not have been permitted to be made at such time under this Section 4.07, the Company shall be deemed to be in breach of this Section 4.07).
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiariesthe Company); (iiiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may beNotes, except a payment of interest or principal at Stated Maturity; or (iiiiv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iiiiv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income), (fc), (d) and (gf), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (without duplication) of the following: (A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date January 1, 1998 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.or
Appears in 1 contract
Sources: Indenture (Pumpkin Air Inc)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (iother than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of its Restricted Subsidiaries (the Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of its Restricted Subsidiaries); the Company;
(ii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or
(iii4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iii4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(aA) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(bB) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof4.09(a); and
(cC) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses clause (b) through (e) and, to the extent deducted in computing Consolidated Net Income2), (f3), (4), (5) and or (g6) of the next succeeding paragraphSection 4.07(b), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (sum, without duplication) of the following: , of:
(Ai) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from commencing on the first day of first the fiscal quarter following in which the 2018 Notes Issue Date occurred to and ending on the last day of the fiscal quarter ended immediately prior to the end date of the Company’s most recently ended fiscal quarter such calculation for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus
(Bii) 100% of the aggregate of net proceeds (1) the net cash proceeds and (2) including the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case property other than cash) received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance issue or sale of Disqualified Stock or debt securities of the Company that have been converted into, into or exchanged or redeemed for, for such Equity Interests (other than any such Equity Interests, Interests (or Disqualified Stock or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified StockCompany), plus ; plus
(Ciii) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus and (Dy) if any the initial amount of such Restricted Investment; plus
(iv) upon redesignation of an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as Subsidiary.
(b) The provisions of the date of redesignation and (2Section 4.07(a) the amount of such Investments. The foregoing provisions will shall not prohibit any of the followingprohibit:
(a1) the payment of any dividend within 60 days after the date of declaration thereof thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;
(b2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor of its Restricted Subsidiaries or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchaserepurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(BC)(ii) of the preceding paragraphSection 4.07(a);
(c3) the defeasance, redemption, purchaserepurchase, retirement retirement, defeasance or other acquisition of subordinated Indebtedness or Disqualified Stock of the Company or any Guarantor of its Restricted Subsidiaries with the net cash proceeds from an incurrence of, or in exchange for, of Permitted Refinancing Indebtedness;
(d4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Dateagreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 $7.5 million in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h5) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, Restricted Payments in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate100.0 million; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract
Restricted Payments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to(a) Declare or make, directly or indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), Payment unless, at the time of and immediately after giving effect to such Restricted Payment:
, such Restricted Payment, together with the aggregate amount of all other Restricted Payments (aincluding the fair market value of any non-cash amount) made by Holdings, the Borrowers and the Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by Section 7.06(b)(i), (ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (c) thereof), (vi)(C) and (viii), but excluding all other Restricted Payments permitted by Section 7.06(b) (and for the avoidance of doubt, all other Permitted Investments)), does not exceed the Available Amount at such time; provided to the extent such Restricted Payment is to be made out of amounts under clause (b) of the definition of “Available Amount,” (x) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
thereof and (by) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant Permitted Unsecured Ratio Debt would be permitted to be incurred.
(b) The provisions of Section 7.06(a) will not prohibit:
(i) the Consolidated payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 7.06;
(a) the redemption, repurchase, retirement or other acquisition of any Equity Interest, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”), or Subordinated Indebtedness, of any Loan Party or any Equity Interest Coverage Ratio test set forth of any Parent Entity, in Section 4.09 hereof; and
exchange for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to Holdings or a Restricted Subsidiary) of, Equity Interests of Holdings or any Parent Entity thereof (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”), (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to Holdings or a Restricted Subsidiary or to an employee stock ownership plan or any trust established by Holdings, a Borrower or any Restricted Subsidiary) of Refunding Capital Stock, and (c) such Restricted Paymentif immediately prior to the retirement of Treasury Capital Stock, together with the declaration and payment of dividends thereon was permitted under clause (xvi) of this Section 7.06(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of all dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(iii) the defeasance, redemption, repurchase, exchange or other Restricted Payments acquisition or retirement of Disqualified Stock made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) andexchange for, to the extent deducted in computing Consolidated Net Income, (f) and (g) or out of the next succeeding paragraph)proceeds of a sale made within 90 days of, and Disqualified Stock of Holdings, a Borrower or a Subsidiary Guarantor that, in each case, is incurred in compliance with Section 7.03;
(yiv) a Restricted Payment to pay for the aggregate amount repurchase, retirement or other acquisition or retirement for value of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyHoldings or any Parent Entity thereof held by any future, present or former employee, director, officer, manager or consultant (iior their respective Controlled Investment Affiliates or Immediate Family Members) dividends or distributions payable to the Company of a Borrower, any Subsidiary of Holdings, Holdings or any of its Restricted Subsidiaries Parent Entities pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or equity holder agreement (iii) if including, for the Restricted Subsidiary making avoidance of doubt, any principal and interest payable on any notes issued by Holdings or any Parent Entity thereof in connection with such dividend is not a Wholly Owned repurchase, retirement or other acquisition), including any Equity Interest invested by management of any Borrower, any Restricted Subsidiary, dividends Holdings or any Parent Entity thereof in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this Section 7.06(b)(iv) does not exceed (1) prior to its shareholders the Delayed Draw Funding Date, $18,000,000 in any fiscal year (which amount shall be increased to $32,000,000 following the consummation of a Qualifying IPO) (with unused amounts in any fiscal year being carried over to the next two succeeding fiscal years) or (2) on and after the Delayed Draw Funding Date, $25,000,000 in any fiscal year (which amount shall be increased to $41,000,000 following the consummation of a pro rata basisQualifying IPO) (with unused amounts in any fiscal year being carried over to the next two succeeding fiscal years); provided, is less than the sum (without duplication) further, that in each case, each of the following: amounts in any fiscal year under this clause may be increased by an amount not to exceed:
(A) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) cash proceeds from the first day of first fiscal quarter following the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or of a Borrower, Holdings and, to the extent contributed to Holdings, the cash proceeds from the issuance or sale of Disqualified Stock Equity Interests of any Parent Entity, in each case to any future, present or debt securities of the Company that have been converted intoformer employees, directors, officers, managers, or exchanged consultants (or redeemed fortheir respective Controlled Investment Affiliates or Immediate Family Members) of a Borrower, any Subsidiary of Holdings, Holdings or any of its Parent Entities that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary are excluded from the calculation of the Company Available Amount and other than Disqualified Stock are not included in Excluded Contributions and do not constitute the CT Equity Contribution, the C&W Equity Contribution or convertible debt securities that have been converted intothe Holdback Escrow Amount; plus
(B) the cash proceeds of life insurance policies received by Holdings, or exchanged or redeemed forthe Borrowers, Disqualified Stock)the Restricted Subsidiaries, plus in each case, after the Closing Date; less
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) the payment of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied Restricted Payments previously made with the provisions cash proceeds described in clauses (A) and (B) of this Indenture;
clause (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockiv); provided that the amount of any such net cash proceeds that are utilized for any such redemption, purchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph;
(c) the defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement cancellation of Indebtedness owing to Holdings, a Borrower or such repurchaseany Restricted Subsidiary from any future, redemption present or former employees, directors, officers, managers, or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of a Borrower, any Subsidiary of Holdings, Holdings or any Parent Entity in connection with a repurchase of Equity Interests of Holdings or any Parent Entities thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other acquisition or retirement or the agreement are approved by a majority provision of the disinterested members of the Board of Directorsthis Agreement;
(hv) loans the declaration and payment of dividends or advances distributions to holders of any class or series of Disqualified Stock of Holdings, any Borrower or any Restricted Subsidiary issued in the ordinary course accordance with Section 7.03 or any class or series of business to Affiliates or Persons with which the Company or a Preferred Stock of any Restricted Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans dividends or advances distributions are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described included in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of Consolidated Interest Expense”;
(avi) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (bA) the amount declaration and payment of such Investments. Any designation dividends or redesignation of a Subsidiary shall be evidenced distributions to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation holders of any Investment relating thereto (as determined in good faith by the Board class or series of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments Designated Preferred Stock (other than cashDisqualified Stock) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by Holdings after the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.Closing Date;
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Sources: Second Lien Credit Agreement (DTZ Jersey Holdings LTD)
Restricted Payments. The Company (a) Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly (i) declare or indirectlymake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of Capital Stock or other Equity Interests of, including any payment in connection with a merger or consolidation involving Holdings or any of its Subsidiaries, (iii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger shares of Capital Stock or consolidation involving the Company) any other Equity Interests of the Company Holdings or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company now or any of its Restricted Subsidiaries); (ii) make any payment on or with respect tohereafter outstanding, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any payment or prepayment of principal of, premium, if any, interest, redemption, exchange, purchase, retirement, defeasance, sinking fund or other payment with respect to, any Subordinated Indebtedness or (iv) make any Restricted Investment Investments (all such payments the items described in CLAUSES (I), (II), (III), and other actions set forth in clauses (iIV) through (iii) above being collectively are referred to as “"RESTRICTED PAYMENTS"); except that the Company or any Subsidiary of the Company may make a Restricted Payments”)Payment not involving any dividend or other distribution on, unlessor repurchase or redemption of, Capital Stock of Holdings if at the time of and after giving effect to such Restricted Payment:;
(aA) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;; and
(bB) the Company would, at the time of such Restricted Payment was made and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter Fiscal Quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test Test set forth in Section 4.09 SECTION 5.04(A) hereof; and
(cC) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all dividends and other payments or distributions paid subsequent to the Issue Date on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum of (without duplication) of the following: (A1) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first day Fiscal Quarter commencing after the date of first fiscal quarter following the Issue Date this Indenture to the end of the Company’s 's most recently ended fiscal quarter Fiscal Quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B2) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company from contributions of capital from Holdings to the Company since the Issue Date as a contribution to its common equity capital date of this Indenture or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, into such Equity Interests (other than any such Equity Interests, Disqualified Stock Interests (or convertible debt securities securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Capital Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, into Disqualified Capital Stock), plus (C3) to the extent that any Restricted Investment that was made after the Issue Date date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2y) the initial amount of such Investments. Restricted Investment.
(b) The foregoing provisions will shall not prohibit any of the followingfollowing if no Default or Event of Default shall have occurred and be continuing immediately after any such transaction:
(ai) the payment defeasance, redemption or repurchase of any dividend within 60 days after the date of declaration thereof if at said date of declaration such payment would have complied Subordinated Indebtedness with the provisions of this Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or the substantially concurrent sale (other than to a Restricted Subsidiary of the CompanyHoldings) of, other Equity Interests of the Company Capital Stock of Holdings (other than any Disqualified Capital Stock); provided provided, however, that the amount of any such net cash proceeds from the sale of Capital Stock of Holdings that are utilized for any such redemption, purchaserepurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(BC)(2) of the preceding paragraph;
(cii) the defeasanceconsummation of the Merger (including the making of Restricted Payments from the Company to Holdings to allow Holdings to make Restricted Payments necessary to consummate the Merger or prepay Indebtedness as to which Holdings is an obligor, redemption, purchase, retirement and further including Holdings and/or the Company making (or other acquisition of subordinated Company making Restricted Payments to Holdings to allow Holdings to make) payments on all (A) Indebtedness of Holdings and its Subsidiaries existing prior to the Closing Date (including any thereof constituting Subordinated Indebtedness), and (B) noncompete payments to senior officers of Holdings and the Company, payments in connection with termination of employment contracts, payments of stay or retention bonuses, and deferred payments on restricted Capital Stock of Holdings held by certain employees of Holdings and the Company or any Guarantor with in connection therewith, to the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtednessextent the same have been disclosed to the Purchasers pursuant to Schedule 1(q) of the Purchase Agreement;
(diii) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) repurchases of Equity Interests deemed to occur upon exercise of stock options, if such Equity Interests represent a portion of the exercise price of such stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value by Holdings of (and the making of Restricted Payments by the Company to Holdings to permit Holdings to repurchase, redeem, acquire or retire for value) any Equity Interests of the Company or any Restricted Subsidiary of the Company Holdings held by any member Management Investors and their Related Parties; provided, however, that, at the time of the Company’s (or any of its such Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in Payment and after giving effect as of the Issue Date; provided that thereto, the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in the current Fiscal Year shall not exceed €1,000,000 in $1,500,000 plus the unused portion of said $1,500,000 from the immediately preceding Fiscal Year plus the aggregate cash proceeds received by Holdings during such Fiscal Year from any twelve-month periodissuance or reissuance of Equity Interests of Holdings to Management Investors and their Related Parties plus any proceeds received during such Fiscal Year under key man insurance policies with respect to such Management Investors; providedand PROVIDED, furtherFURTHER, that any such agreement aggregate cash proceeds from any such issuance or such repurchasereissuance of Equity Interests shall, redemption to the extent actually used to repurchase other Equity Interests of Holdings, be excluded from clause (C)(2) of the preceding paragraph;
(iv) the redemption, repurchase or other acquisition or retirement for value by the Company or any Subsidiary of the agreement are approved Company of any Capital Stock of a Permitted Partially Owned Subsidiary owned by a majority licensed veterinarian (or professional veterinary corporation) whose employment by the Company or any Subsidiary has terminated, provided the consideration paid does not exceed the fair market value of the disinterested members of such Capital Stock as determined by the Board of DirectorsDirectors in good faith and all Indebtedness owed by such veterinarian or professional corporation to Holdings and its Subsidiaries is repaid in full concurrently with such redemption or repurchase;
(hv) loans the payment by any Subsidiary of Holdings of any distribution or advances in dividend on its Capital Stock or the ordinary course redemption or repurchase by any Subsidiary of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction of its Capital Stock to the extent the proceeds thereof or any property transferred pursuant thereto are paid pro rata to holders of such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one timeCapital Stock;
(ivi) the making by Holdings or the Company of regularly scheduled payments in respect of any Subordinated Indebtedness permitted hereby in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, any agreement pursuant to which such Subordinated Indebtedness was issued, so long as no Event of Default described in SECTION 7.01 has occurred or is continuing or will result therefrom, provided that in the event that any Restricted Payment otherwise permitted under this clause (vi) is not permitted to be made because of such Events of Default, such Restricted Payment shall accrue and may be paid upon the waiver or cure of the applicable Event of Default so long as no other Event of Default described in SECTION 7.01 has occurred and is continuingcontinuing or will result therefrom.
(vii) the making by the Company of Restricted Payments to Holdings to allow Holdings to make regularly scheduled payments (but not voluntary prepayments and not cash interest payments if Holdings is allowed to make payment of interest in PIK Notes) in respect of the Notes, advances constituting Investment or loans Seller Notes, Earn-Out Obligations and to directorsallow Holdings to make payments permitted under clause (vi) immediately preceding;
(viii) the making by the Company of Restricted Payments to Holdings to allow Holdings to pay reasonable general administrative costs and expenses, officers to pay consolidated Tax liabilities of Holdings and employees its Subsidiaries, to pay obligations of Holdings due after the Closing Date under any Transaction Documents (as defined in the Purchase Agreement) to which Holdings is a party and to pay obligations of Holdings after the Closing Date with respect to any obligation of Holdings prior to the Asset Dropdown (as defined in the Purchase Agreement) which remain obligations of Holdings as a matter of law, and to pay amounts to Affiliates of Holdings which Holdings is permitted to pay under the provisions of SECTION 5.06 hereof;
(ix) the making by the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregatePermitted Acquisitions;
(jx) the making by the Company and its Subsidiaries of loans or advances to veterinarians (or professional corporations owned by such veterinarians) substantially involved in the business of a Subsidiary of the Company to allow such veterinarians (or such professional corporations) to acquire Capital Stock of such Subsidiary, so long as such Subsidiary remains a Permitted Partially Owned Subsidiary after such acquisition of its Capital Stock; and
(xi) the making by the Company and its Subsidiaries of other Restricted Payments not to exceed $15,000,000 5.0 million in the aggregate; andaggregate since the date of this Indenture.
(kc) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation, in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company Holdings or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term “fair market value,” and the results of such determination shall be evidenced by an Officers’ Certificate delivered to the Trustee.
Appears in 1 contract